[EL] ELB News and Commentary 5/22/19

[Rick Hasen]

“How Trump Is Outspending Every 2020 Democrat on Facebook”<https://electionlawblog.org/?p=105256>
Posted on May 21, 2019 9:32 pm<https://electionlawblog.org/?p=105256> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports<https://www.nytimes.com/interactive/2019/05/21/us/politics/trump-2020-facebook-ads.html>.
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Posted in campaigns<https://electionlawblog.org/?cat=59>


“Watchdog Group Files Complaint Over Donation to Trump Super PAC by Canadian Billionaire’s Company”<https://electionlawblog.org/?p=105254>
Posted on May 21, 2019 9:31 pm<https://electionlawblog.org/?p=105254> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2019/05/21/us/politics/donation-trump-super-pac-canadian.html>:

A campaign finance watchdog group filed a complaint on Tuesday against a Canadian billionaire alleging that he violated a federal ban on contributions by foreigners when his United States-based company donated $1.75 million last year to a political committee supporting President Trump’s agenda.

The complaint was filed<https://www.documentcloud.org/documents/6021934-05-21-19-Wheatland-Tube-Signed-and-Stamped-1.html> by the watchdog group, the Campaign Legal Center, with the Federal Election Commission against Barry Zekelman, the chief executive of Zekelman Industries, North America’s largest steel tube manufacturer. Mr. Zekelman has pushed the Trump administration to take steps that help block the import to the United States of steel tube made by his competitors.

Mr. Zekelman, whose efforts to influence federal policy on steel tariffs was detailed in a story in The New York Times<https://www.nytimes.com/2019/05/20/us/politics/hes-one-of-the-biggest-backers-of-trumps-push-to-protect-american-steel-and-hes-canadian.html?module=inline>, was invited to a dinner with Mr. Trump at the Trump International Hotel in April 2018, after the first contribution to the Trump-affiliated committee, America First Action Super PAC<https://www.a1apac.org/>, for $1 million.

Two more contributions — first for an additional $250,000 and then $500,000 more — followed during 2018, making Zekelman Industries one of the single biggest contributors to Mr. Trump’s political causes.

The contribution was made by Wheatland Tube LLC, a Chicago-based company that is owned entirely by Zekelman Industries, which Mr. Zekelman and his two brothers control. Mickey McNamara, general counsel at Zekelman Industries and president of Wheatland Tube, declined to comment on Tuesday about the Campaign Legal Center’s filing.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“Prosecutors: Michael Cohen campaign finance probe is active”<https://electionlawblog.org/?p=105252>
Posted on May 21, 2019 9:26 pm<https://electionlawblog.org/?p=105252> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://www.stripes.com/news/us/prosecutors-michael-cohen-campaign-finance-probe-is-active-1.582031>:

Prosecutors aren’t quite finished investigating campaign finance violations by President Donald Trump’s former personal lawyer.

U.S. District Judge William H. Pauley III agreed Tuesday to keep search warrant materials related to the investigation of Michael Cohen under seal until July 15 after prosecutors submitted a letter last week explaining why the probe continues. That letter remains sealed.

Pauley cited “ongoing aspects” of the government’s investigation as he directed prosecutors to identify in July what individuals or entities remain subject to continuing probes and explain any need for continued redaction.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, chicanery<https://electionlawblog.org/?cat=12>


In Important Step and In Rare Bipartisan Fashion, Federal Election Commission Unanimously Approves Measure to Provide Free or Reduced-Cost Cybersecurity Protection for American Campaigns [Subject to Disclosure of, and Limits on Sources of Funding for Effort (That Part’s Not Unanimous)]<https://electionlawblog.org/?p=105248>
Posted on May 21, 2019 6:37 pm<https://electionlawblog.org/?p=105248> by Rick Hasen<https://electionlawblog.org/?author=3>

This is very good news. You can find the advisory opinion here<https://electionlawblog.org/wp-content/uploads/fec-ddc.pdf>. It is unanimous, except the Republican commissioners would not have imposed the disclosure requirements or source limitations.

From Chair Weintraub’s letter:

Under the unusual and exigent circumstances presented by your request and in light of the demonstrated, currently enhanced threat of foreign cyberattacks against party and candidate committees, the Commission approves DDC’s proposed activity.

The Act and Commission regulations prohibit foreign nationals from making contributions, expenditures, donations, or disbursements in connection with federal, state, and local elections. See 52 U.S.C. § 30121(a)(1); 11 C.F.R. § 110.20. This prohibition is intended to “exclude foreign citizens from activities intimately related to the process of democratic self-government.” See Bluman v. FEC, 800 F. Supp. 2d 281, 287 (D.D.C. 2011) (internal quotations omitted), aff’d mem., 565 U.S. 1104 (2012). Such exclusion “is part of the sovereign’s obligation to preserve the basic conception of a political community.” Id. (emphasis added).

The Commission has approved certain advisory opinion requests to take particular, carefully defined, and limited actions to address urgent circumstances presenting a verified, heightened risk of physical or malicious digital harm. See Advisory Opinion 2018-15 (Wyden); Advisory Opinion 2017-07 (Sergeant at Arms). Here, we have such circumstances. The Commission concludes that the current threat of foreign cyberattacks presents unique challenges to Commission enforcement of section 30121, and that this highly unusual and serious threat militates in favor of granting DDC’s request.

The request notes that recent election cycles have seen actual and attempted foreign cyberattacks on party and candidate committees on an unprecedented scale.9 Foreign cyberattacks that entail disbursements by foreign nationals in connection with American elections are violations of section 30121. But foreign cyberattacks, in which the attackers may not have any spending or physical presence in the United States, may present unique challenges to both criminal prosecution and civil enforcement.10 Thus, the Commission recognizes that fulfilling its “obligation to preserve the basic conception of a political community” under section 30121 cannot hinge solely on prosecution of foreign violators abroad. Effective enforcement of that provision to protect American elections from urgent cyberthreats also requires that countermeasures be taken within the United States. DDC’s proposal is a unique response to such threats. DDC proposes to offer free or reduced-cost cybersecurity services, including facilitating the provision of free or reduced-cost cybersecurity software and hardware from technology corporations, to federal candidates and parties according to a pre-determined set of criteria. DDC is formed in a bi-partisan fashion, co-led by former campaign managers of Republican and Democratic presidential campaigns. AOR004. DDC proposes to make its services available on a nonpartisan basis and “not to benefit any one campaign or political party over another or to otherwise influence any federal election.” AOR002. DDC plans to offer its services not only to political committees, but also to “think tanks” and other public policy-focused NGOs. DDC Comment (April 5, 2019) at 3. DDC, a 501(c)(4) organization which its counsels represented will operate like a 501(c)(3),
would not be prevented from accepting donations from foreign nationals because of its tax status.

However, because this advisory opinion is premised on the threat of foreign cyberattacks against party and candidate committees and the implications those attacks have on Commission enforcement of section 30121, the Commission’s approval is conditioned on DDC’s commitment
not to accept any donations from foreign nationals, and its adherence to the representations described above.

Approval is conditioned on DDC’s public disclosure of all donations and, going forward, disclosure of new donations by the first day of the month following when they were received;11 and its commitment to accept donations only from individuals, foundations, and entities that have elected C corporation status for federal income-tax purposes.12

[Footnote 12: Vice Chairman Petersen and Commissioner Hunter approve this Advisory Opinion, but do not condition their approval on these disclosure requirements and funding restrictions.}
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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>, social media and social protests<https://electionlawblog.org/?cat=58>


“Americans may vote in 2020 using old, unsecured machines”<https://electionlawblog.org/?p=105246>
Posted on May 21, 2019 5:41 pm<https://electionlawblog.org/?p=105246> by Rick Hasen<https://electionlawblog.org/?author=3>

Roll Call reports.<https://www.rollcall.com/news/congress/americans-may-vote-in-2020-using-old-unsecured-machines>
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Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>


Eric Wang Responds to Brennan Center’s Call to Revamp the Federal Election Commission<https://electionlawblog.org/?p=105244>
Posted on May 21, 2019 5:29 pm<https://electionlawblog.org/?p=105244> by Rick Hasen<https://electionlawblog.org/?author=3>

Here<https://dailycaller.com/2019/05/21/wang-democrats-fec> at the Daily Caller.
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Posted in federal election commission<https://electionlawblog.org/?cat=24>


“Washington Governor Jay Inslee signs law ending prison gerrymandering”<https://electionlawblog.org/?p=105242>
Posted on May 21, 2019 3:19 pm<https://electionlawblog.org/?p=105242> by Rick Hasen<https://electionlawblog.org/?author=3>

Release<https://www.prisonersofthecensus.org/news/>:

Today, Washington State Governor Jay Inslee signed a bill into law ensuring that people in state prisons will be counted as residents of their home addresses when new legislative districts are drawn, making Washington the fifth state<https://www.prisonersofthecensus.org/legislation.html> to end the practice known as prison gerrymandering.

The Washington State Constitution states that, for the purposes of voting, people in prison should be counted as residents of their hometowns. However, the Census Bureau counts incarcerated people<https://www.prisonersofthecensus.org/news/2018/02/07/frn2018/> as residents of the places where they are incarcerated. As a result, when Washington State used Census counts to draw past legislative districts, it unintentionally enhanced the weight of votes cast in districts containing prisons — at the expense of all other districts in the state.

“Washington State’s new law recognizes that ending prison gerrymandering is an important issue of fairness,” said Aleks Kajstura, Legal Director of the Prison Policy Initiative, who was present when the bill was signed. “All districts — some far more than others — send people to prison, but only some districts containprisons. Counting incarcerated people as residents of the prison gives extra representation to the prison district, dilutes the votes of everyone who does not live next to the state’s largest prison, and distorts the constitutional principle of one person, one vote. This new law offers Washington voters a fairer data set on which future districts will be drawn.”

The legislation, passed as SB 5287<https://app.leg.wa.gov/billsummary?BillNumber=5287&Initiative=false&Year=2019>, applies only to redistricting and will not affect federal or state funding distributions.
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Posted in redistricting<https://electionlawblog.org/?cat=6>


“‘This was a steal’: Campaign real estate deal that ‘thrilled’ Trump could be illegal”<https://electionlawblog.org/?p=105239>
Posted on May 21, 2019 8:43 am<https://electionlawblog.org/?p=105239> by Rick Hasen<https://electionlawblog.org/?author=3>

Washington Examiner<https://www.washingtonexaminer.com/news/white-house/this-was-a-steal-campaign-real-estate-deal-that-thrilled-trump-could-breach-federal-election-law>:

President Trump was “thrilled” that his campaign acquired Northern Virginia office space at “bargain basement” rates, a campaign official told the Washington Examiner in an interview in the plush 14th floor offices overlooking the Potomac River from Arlington, Va.

But campaign finance specialists say the “steal” could violate election law, which views below-market rates for rent as an illegal in-kind campaign donation.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“Finding Common Ground on Voter ID Laws”<https://electionlawblog.org/?p=105237>
Posted on May 21, 2019 8:41 am<https://electionlawblog.org/?p=105237> by Rick Hasen<https://electionlawblog.org/?author=3>

Gene Mazo has posted this draft <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3390049> on SSRN (forthcoming, University of Memphis Law Review). Here is the abstract:

Voter ID laws are currently in force in 35 states. In most states, these laws have been divisive and controversial. Our political parties see the world differently when it comes to voter ID requirements. Republicans are concerned with election integrity and claim that voter ID laws are necessary to prevent fraud. Democrats liken voter ID laws to the poll taxes and literacy tests of the past and claim these laws disenfranchise minorities, the elderly, and the poor. Because the perceptions of voter fraud and the conclusions about the effects of voter ID laws differ between the parties, voter ID laws have been the subject of intense debate and subject to multiple court challenges.

To move the conversation forward, this Article seeks to forge a new path. It first recounts the history of voter ID laws, looks at their justifications, and probes their popular support. It then discusses the litigation involving these laws and examines the scholarly literature concerning their effects. At least some of this literature suggests that voter ID laws may have less impact than is commonly believed, both in terms of preventing voter fraud and in terms of suppressing turnout. As such, this Article explores a way that proponents and opponents of these laws could be brought together to achieve their common goals: protecting the integrity of American elections while not making it any more difficult for ordinary citizens to participate in the democratic process. This Article offers a proposal for how these twin goals could be achieved with a voter ID requirement.

Any state mandating a voter ID requirement would have to agree to take on the burden of providing voter IDs free of charge to all citizens when they register to vote, and it would have to ease the barriers to voter registration. The state’s goal in doing so would be to broaden the electorate in the short and long term. Second, the state would have to make sure that its voter ID requirement was population-neutral. This means the requirement would have to be designed so that it does not discriminate against any group. Third, states requiring voter IDs would have to take steps to ensure that voters who lose or forget their IDs have a safety net and that there is still a way for them to cast a ballot, if they can later prove their identity.

The best way for a state to implement all of these reforms would be to delay the implementation of its voter ID requirement until after it runs a multi-year marketing and public relations campaign educating its citizens about its new requirement. In short, this Article argues that voter ID laws should be used to enlarge, rather than restrict, a state’s voting electorate, and ultimately, to strengthen a state’s democratic base.
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Posted in election administration<https://electionlawblog.org/?cat=18>, The Voting Wars<https://electionlawblog.org/?cat=60>


Today’s Must-Read: WaPo on Leonard Leo’s Web of Federalist Society-Allied Organizations, Including JCN, Funded by Undisclosed Money, Making Leo Very Rich and Transforming the American Judiciary into a Deeply Conservative One<https://electionlawblog.org/?p=105235>
Posted on May 21, 2019 8:36 am<https://electionlawblog.org/?p=105235> by Rick Hasen<https://electionlawblog.org/?author=3>

You’ve got to read this<https://www.washingtonpost.com/graphics/2019/investigations/leonard-leo-federalists-society-courts/?utm_term=.d44707939aed> all the way to the end.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Breaking: Federal District Court Allows Suit Against Georgia’s Use of Unsecure DRE Machines without a Paper Trail to Go Forward, Partially Denying Motion to Dismiss<https://electionlawblog.org/?p=105232>
Posted on May 21, 2019 8:27 am<https://electionlawblog.org/?p=105232> by Rick Hasen<https://electionlawblog.org/?author=3>

Important opinion and order<https://electionlawblog.org/wp-content/uploads/dre-order.pdf> in an important case:

In sum, the Plaintiffs have alleged that Defendants were aware of serious security breaches in the DRE voting system and failed to take adequate steps to address those breaches. Notably, even after Mr. Lamb first alerted the State about his access of the voting system, he and another cybersecurity expert were able to access the system again about six months later. (Curling Complaint, Doc. 70 ¶ 47.)

Plaintiffs allege that Defendants have failed to take action to remedy the DRE system’s vulnerabilities. (Id. ¶¶ 46, 61, 62, 72.) And they allege that this failure, in turn, impacts the integrity of the voting system and their ability as citizens to rely upon it when casting votes in this system. (Id.)

At the motion to dismiss stage, Plaintiffs’ allegations that Defendants’ continued use of unsecure DREs infringe the Plaintiffs’ fundamental right to vote are sufficient to state a plausible due process violation. Duncan, 657 F.2d at 702-3 (“the federal courts have not hesitated to interfere when state actions have jeopardized the integrity of the electoral process” and when “confronted with an officially-sponsored election
procedure which, in its basic aspect, was flawed”).

Here, Plaintiffs have adequately alleged that their Fourteenth Amendment rights to Due Process and Equal Protection have been burdened – i.e., that the State’s continued reliance on the use of DRE machines in public elections likely results in “a debasement or dilution of the weight of [Plaintiffs’] vote[s],” even if such conduct does not completely deny Plaintiffs the right to vote. Bush v. Gore, 531 U.S. 98, 105 (2000) (quoting Reynolds, 377 U.S. at 555). Accordingly, the Court DENIES Defendants’ Motions to Dismiss Plaintiffs’ due process and equal protection claims.

Footnote:

The Court recognizes that the Georgia legislature passed Act No. 24/House Bill 316, signed by the Governor on April 2, 2019, and approved funds for a new system of voting technology slated to go into effect in 2020. As the state has yet to choose which specific vendor’s proposal will be selected and implemented, how these issues will play out in the context of new voting technology remains an open question. Nonetheless, a number of elections are anticipated to take place using the current DRE system in 2019.
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Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>


D.C. Circuit, Sitting En Banc, Upholds Federal Campaign Contribution Limits Applied to Bequests to Libertarian Party, with 3 Judges Partially Dissenting<https://electionlawblog.org/?p=105227>
Posted on May 21, 2019 7:57 am<https://electionlawblog.org/?p=105227> by Rick Hasen<https://electionlawblog.org/?author=3>

Read the opinion in Libertarian National Committee v. FEC<https://electionlawblog.org/wp-content/uploads/LNC.FEC_.pdf>. Judge Tatel’s majority opinion begins:

When Joseph Shaber passed away he left over $235,000 to the Libertarian National Committee (LNC). This case is about when and how the LNC can spend that money. The LNC argues that the Federal Election
Campaign Act (FECA), which imposes limits on both donors and recipients of political contributions, violates its First Amendment rights in two ways: first, by imposing any limits on the LNC’s ability to accept Shaber’s contribution, given that he is dead; and second, by permitting donors to triple the size of their contributions, but only if the recipient party spends the money on specified categories of expenses. Scrutinizing each provision in turn, we find no constitutional defects and reject
the LNC’s challenges.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


--
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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