[EL] ELB News and Commentary 5/28/19

[Rick Hasen]

“Trump campaign embraces groups trying to court minority voters – one with false pitches”<https://electionlawblog.org/?p=105316>
Posted on May 27, 2019 8:24 pm<https://electionlawblog.org/?p=105316> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/from-the-fringe-to-a-meeting-with-lara-trump-groups-go-after-minority-voters-with-pleas-to-abandon-the-democratic-party/2019/05/24/514a7c74-7ccf-11e9-8ede-f4abf521ef17_story.html?utm_term=.2e0dd333a725>:

Nearly a year after a gay freelance hairstylist living in Harlem posted a Facebook video repudiating the Democratic Party, Brandon Straka found himself in Trump Tower on Thursday speaking with Lara Trump, the president’s daughter-in-law and a senior campaign adviser.

He was there to record a new video, this time for Donald Trump’s campaign Facebook page, trumpeting his efforts to convince people who identify as minorities — blacks, Latinos, gays, lesbians and the transgender — that they need to “walk away” from Democrats, who he argues belong to a party of “rage, hate and lies.”

That idea, spread on Fox News programs and conservative social media, is emerging as a central argument of the Trump reelection campaign’s efforts to win over minority communities and blunt attacks on Trump for having used racially divisive rhetoric and pushed policies that discriminate against the LGBTQ community.

The tactic also marks a shift for the Republican Party’s outreach efforts. In the 2000s, two Republican National Committee chairmen admitted and apologized for the “Southern strategy,” a GOP effort to win white voters by appealing to racial polarization. After the 2012 election, Republican leaders argued for a more compassionate appeal to minorities and women, including a carefully crafted tone to appeal to Hispanics and support for “comprehensive immigration reform.”

Activists like Straka, by contrast, argue that there is no longer any intentional oppression of minorities in the United States and that much of the accepted political history in the country, particularly around racial issues, is wrong.

A video promoted by his group, the WalkAway Campaign, includes testimony from black voters who describe the Democratic Party as a historic promoter of the Ku Klux Klan and make the false claims that Martin Luther King Jr. was a Republican and that Confederate Gen. Robert E. Lee and his wife “were huge slavery abolishment activists.” One testimonial argues that Democrats are “picking illegal immigrants over black people.”
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>


Sign of Democratic Power in Texas: “David Whitley resigns as end-of-session deadline nears”<https://electionlawblog.org/?p=105314>
Posted on May 27, 2019 8:17 pm<https://electionlawblog.org/?p=105314> by Rick Hasen<https://electionlawblog.org/?author=3>

Austin-American Statesman<https://www.statesman.com/news/20190527/david-whitley-resigns-as-end-of-session-deadline-nears>:

Shortly before the Senate’s closing gavel ended his term as Texas secretary of state, David Whitley delivered his letter of resignation, “effective immediately,” to Gov. Greg Abbott on Monday afternoon.

Whitley needed Senate confirmation by the end of the legislative session to remain on the job but fell short of the required 21 votes despite expected support from all 19 Republican senators.

All 12 Democrats, however, held firm in their opposition to Whitley over his handling of an error-filled investigation into the citizenship status of registered voters that prompted three federal lawsuits and an eventual court settlement that halted the probe and limited the scope of future investigations.
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Posted in election law biz<https://electionlawblog.org/?cat=51>, The Voting Wars<https://electionlawblog.org/?cat=60>


“Buckley 2.0: How Would The Buckley Court Decide Buckley Today?”<https://electionlawblog.org/?p=105312>
Posted on May 27, 2019 4:56 pm<https://electionlawblog.org/?p=105312> by Rick Hasen<https://electionlawblog.org/?author=3>

Miriam Galston has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3385843> on SSRN. Here is the abstract:

 If you read Supreme Court campaign finance cases, you will be struck by the disconnect between the lofty rhetoric used to justify the constitutional protections afforded political speech and the impoverished sound bites and hyperbolic attack ads that dominate contemporary electoral communications. The origin of this disconnect is in large part two phenomena. First, in the last decade the Court has failed to take the factual record seriously and, as a result, makes generalizations that are belied by contemporary campaign practices. Relatedly, the Court has adopted doctrines that co-exist in uneasy relationships with campaign finance doctrines of longstanding. As a result, the Court has created an alternative universe that only first amendment absolutists find credible, and it has constitutionalized an increasingly corrupt electoral landscape.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, Supreme Court<https://electionlawblog.org/?cat=29>


“Texas’ embattled elections chief on brink of losing job”<https://electionlawblog.org/?p=105310>
Posted on May 26, 2019 9:21 pm<https://electionlawblog.org/?p=105310> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://www.houstonchronicle.com/news/texas/article/Texas-embattled-elections-chief-on-brink-of-13897962.php?t=940eb58c77>:

Texas’ embattled elections chief who wrongly questioned the U.S. citizenship of tens of thousands of voters was on the brink of losing his job Sunday, while Republican lawmakers prepared to head home hoping to save their own in 2020.

Secretary of State David Whitley appeared set to go down without a public fight in the final hours of an unusually quiet session of the Texas Legislature, where a weakened GOP majority this year showed little appetite for partisan battles over signs their grip on the Capitol is slipping.
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Posted in election law biz<https://electionlawblog.org/?cat=51>


Wendy Tam Cho: “Technology-Enabled Coin Flips for Judging Partisan Gerrymandering”<https://electionlawblog.org/?p=105306>
Posted on May 26, 2019 9:05 pm<https://electionlawblog.org/?p=105306> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is a guest post from Wendy Tam Cho<https://pol.illinois.edu/directory/profile/wendycho>:

The Court has issued a stay in the Ohio and Michigan partisan gerrymandering cases, and we await their rulings in North Carolina and Maryland.  I was an expert witness in the Ohio case, for which I generated more than 3 million simulated maps.  In that case, we spent some time emphasizing how the new technology enables a judicially manageable standard for the Court.  The argument addresses the concerns that Justices Gorsuch and Alito, in particular, raised in oral arguments in Rucho and Benisek.  I have summarized the argument in my just published Southern California Law Review Postscript article<https://southerncalifornialawreview.com/2019/05/24/technology-enabled-coin-flips-for-judging-partisan-gerrymandering-postscript-comment-by-wendy-k-tam-cho/>.

[https://electionlawblog.org/wp-content/uploads/Picture1-1.png]
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>, Uncategorized<https://electionlawblog.org/?cat=1>


“In the Alabama Legislature, James Crow Esq. is hard at work”<https://electionlawblog.org/?p=105304>
Posted on May 25, 2019 10:27 am<https://electionlawblog.org/?p=105304> by Rick Hasen<https://electionlawblog.org/?author=3>

Kyle Whitmire oped<https://www.al.com/news/2019/05/in-the-alabama-legislature-james-crow-esq-is-hard-at-work.html#main> at Al.com:

We have a white people’s party, the GOP. And but for two lawmakers — Rep. Neil Rafferty and Sen. Billy Beasley — we have the black people’s party, the Democrats.

No matter the reasons, the outcome is distinct and undeniable. We’re still a state separated by race, and the imbalance of power still benefits the same side.

Those Democrats are fed up with it and rightfully so.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


No Surprise: Supreme Court, Without Noted Dissent, Blocks Redraws of Ohio, Michigan Maps Found by Lower Courts to Be Partisan Gerrymanders<https://electionlawblog.org/?p=105302>
Posted on May 24, 2019 1:56 pm<https://electionlawblog.org/?p=105302> by Rick Hasen<https://electionlawblog.org/?author=3>

Today’<https://www.supremecourt.gov/orders/courtorders/052419zr3_o758.pdf>s orders<https://www.supremecourt.gov/orders/courtorders/052419zr2_4357.pdf> are no surprise. Indeed, the Court often fails to give preliminary relief <https://www.washingtonpost.com/news/posteverything/wp/2017/06/28/the-supreme-court-is-in-no-hurry-to-protect-voters-from-gerrymandering/?utm_term=.d8601961513d> in redistricting cases even when the plaintiffs eventually win on the merits. Indeed, if the Court did allow the remaps to take place while the Maryland and North Carolina cases were pending, I would take that as a big sign the Court was ready to rein in partisan gerrymanders.

So now we wait, until likely the end of June, to see what the Court has in mind for those pending cases.
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>


“Facebook refuses to delete fake Pelosi video spread by Trump supporters”<https://electionlawblog.org/?p=105300>
Posted on May 24, 2019 10:40 am<https://electionlawblog.org/?p=105300> by Rick Hasen<https://electionlawblog.org/?author=3>

The Guardian<https://www.theguardian.com/technology/2019/may/24/facebook-leaves-fake-nancy-pelosi-video-on-site>:

Facebook says it will continue to host a video of Nancy Pelosi<https://www.theguardian.com/us-news/nancy-pelosi> that has been edited to give the impression that the Democratic House Speaker is drunk or unwell, in the latest incident highlighting its struggle to deal with disinformation.

The viral clip shows Pelosi – who has publicly angered Donald Trump<https://www.theguardian.com/us-news/2019/may/23/pelosi-v-trump-how-a-stable-genius-president-met-his-match> in recent days – speaking at an event, but it has been slowed down to give the impression she is slurring her words.

The president’s personal lawyer, the former mayor of New York Rudy Giuliani, was among the Trump supporters who promoted the story. He tweeted – then deleted – a link to a copy of the video on Facebook<https://www.theguardian.com/technology/facebook> with the caption: “What is wrong with Nancy Pelosi? Her speech pattern is bizarre.”

Despite the apparently malicious intent of the video’s creator, Facebook has said it will only downgrade its visibility in users’ newsfeeds and attach a link to a third-party fact checking site pointing out that the clip is misleading. As a result, although it is less likely to be seen by accident, the doctored video will continue to rack up views. Facebook only took the action following inquiries from the Washington Post, which first reported the story<https://www.washingtonpost.com/technology/2019/05/23/faked-pelosi-videos-slowed-make-her-appear-drunk-spread-across-social-media/?utm_term=.131fda4bd7d7>.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, social media and social protests<https://electionlawblog.org/?cat=58>


“Judge Orders Voter Fraud Alarmist To Be Deposed Again After Docs Raise New Questions”<https://electionlawblog.org/?p=105298>
Posted on May 24, 2019 10:37 am<https://electionlawblog.org/?p=105298> by Rick Hasen<https://electionlawblog.org/?author=3>

TPM<https://talkingpointsmemo.com/muckraker/christian-adams-deposition-aliens-invasion>:

 J. Christian Adams — a former member of President Trump’s voter fraud commission who has been sued for defamation<https://talkingpointsmemo.com/muckraker/lawsuit-j-christian-adams> for his reports claiming mass fraud — will have to sit for another deposition in the case, after a last-minute discovery dump raised new questions about how the reports came together.

U.S. Magistrate Judge Ivan Davis said at a hearing Friday that he was granting the plaintiffs’ request to reopen the deposition. He said the topics should be limited to the materials  —some 1,000 pages of documents — that were turned over after Adams had initially been deposed. He declined Adam’s attorney’s request to narrow the deposition any farther than that, pointing to procedural rules designed to help parties avoid and deal with any disagreements within a deposition.
“That’s how the process works,” Davis sternly told Adams’ attorney, noting that the court does not have an “extrasensory” perception of what issues may arise during a deposition.

Adams and his group the Public Legal Interest Foundation were sued over reports<https://talkingpointsmemo.com/muckraker/lawsuit-j-christian-adams>released in 2016 and 2017 called Alien Invasion and Alien Invasion II, respectively. The reports alleged that thousands of noncitizens had been removed from Virginia’s voter rolls and included voting records, which showed the alleged noncitizens’ personal information such as addresses, birthdays and social security numbers. The lawsuit, which also alleges voter intimidation, was brought by people named in the report who were in fact citizens, as well as by the Richmond Chapter of the League of United Latin American Citizens.
To argue for reopening the deposition, the plaintiffs in a filing last week pointed to an email from a volunteer who helped Adams assemble the report. In it, the volunteer Steven Albertson referenced a 10-15 percent rate<https://talkingpointsmemo.com/muckraker/voter-fraud-report-aliens-invasion-donald-palmer> of people they identified as noncitizens who were actually citizens eventually re-instated on the rolls. Albertson said in a deposition that the source of that estimate was likely Adams — a claim Adams denies.
The plaintiffs also pointed to an email exchange<https://talkingpointsmemo.com/muckraker/virginia-thomas-scotus-christian-adams-voter-fraud-campaign> — turned over the hour before the discovery deadline — that Adams had with other conservative activists including Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas.

Adams’ attorneys in a filing Wednesday<https://drive.google.com/file/d/1gOTuVAZ5x0g1fwSe5CM3AG5JI-58JNR1/view?usp=sharing> suggested that the exchange was made public by the plaintiffs in an effort to “silence and smear” anti-voter fraud advocates. The filing called out TPM by name for reporting on the Thomas emails. The emails came up only briefly at Friday’s hearing. The plaintiffs, represented on Friday by Zachery Martin, defended their inclusion of the emails in their filing because in them, Adams discussed the same Voting Rights Act voter intimidation provision he is now accused of violating.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


Ned Foley and Michael McConnell: “What if 2020 election is disputed?”<https://electionlawblog.org/?p=105296>
Posted on May 24, 2019 9:33 am<https://electionlawblog.org/?p=105296> by Rick Hasen<https://electionlawblog.org/?author=3>

Here’s their proposal<https://thehill.com/opinion/judiciary/445410-what-if-2020-election-is-disputed> in The Hill:

To avoid that predicament, Pelosi and McConnell should jointly create a neutral referee to advise them, starting on Election Day, about any vote counting disputes that might arise once the polls are closed and the tabulating of ballots begins. In 2018, we saw some alarmist rhetoric<https://www.time.com/5450501/florida-recount-2018/> over the normal process of counting the provisional and absentee ballots while preliminary tallies were being verified. Were that same agitation to occur in 2020, a neutral referee to counsel the congressional leaders could help calm a jittery atmosphere and prevent partisan suspicions from spinning out of control. If, based on the advice of their neutral referee, Pelosi and McConnell jointly announce the election over, then as a practical matter it is.

We have thoughts on how to pick a neutral referee. Pelosi and McConnell could each choose one member of a panel of three people, and their two choices could pick the third. This approach, modeled after private sector arbitration, is the simplest method for finding an umpire whom both sides can accept as fair. Minnesota has used a version of this approach to settle some contentious statewide elections.

But whatever method of selection Pelosi and McConnell prefer, their chosen umpire should be ready before counting ballots begins. They should also pledge to accept the findings of the neutral arbiter unless both agree otherwise, a commitment that maintains the bipartisanship of their arrangement. They could make this commitment formal by putting it into legislation, but that step is unnecessary. As long as these two leaders stick to this deal, they can achieve the closure needed for a successful inauguration.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


“Trump Gives Attorney General Sweeping Power in Review of 2016 Campaign Inquiry”<https://electionlawblog.org/?p=105294>
Posted on May 24, 2019 8:07 am<https://electionlawblog.org/?p=105294> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2019/05/23/us/politics/trump-barr-intelligence.html>

President Trump took extraordinary steps on Thursday to give Attorney General William P. Barr sweeping new authorities to conduct a review into how the 2016 Trump campaign’s ties to Russia were investigated, significantly escalating the administration’s efforts to place those who investigated the campaign under scrutiny.

In a directive<https://twitter.com/realDonaldTrump/status/1131716322369392646>, Mr. Trump ordered the C.I.A. and the country’s 15 other intelligence agencies to cooperate with the review and granted Mr. Barr the authority to unilaterally declassify their documents. The move — which occurred just hours after the president again declared that those who led the investigation committed treason — gave Mr. Barr immense leverage over the intelligence community and enormous power over what the public learns about the roots of the Russia investigation.

The order is a change for Mr. Trump, who last year dropped a plan to release documents<https://www.nytimes.com/2018/09/21/us/politics/trump-classification-russian-documents.html?module=inline> related to the Russia investigation amid concerns from Justice Department officials who said making them public could damage national security. At the time, the president was being encouraged by a group of Republican Congress members to declassify the information.

Mr. Barr, who has used the word “spying” to describe how the Trump campaign was investigated, has been deeply involved in the department’s review of how intelligence was collected on the campaign. Mr. Barr has told Congress that he personally authorized the review. While he has asked John H. Durham, the United States attorney in Connecticut, to spearhead it, a Justice Department official said that Mr. Barr has personally met with the heads of the intelligence agencies to discuss the review and that the project was a top priority after the release last month of the special counsel’s report<https://www.nytimes.com/2019/04/18/us/politics/mueller-report-russian-interference-donald-trump.html?module=inline>.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>, Department of Justice<https://electionlawblog.org/?cat=26>

--
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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