[EL] ELB News and Commentary 5/31/19

[Rick Hasen]

“New Democratic Debate Rules Will Distort Priorities, Some Campaigns Say”<https://electionlawblog.org/?p=105373>
Posted on May 30, 2019 8:40 pm<https://electionlawblog.org/?p=105373> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2019/05/30/us/politics/democratic-debate-rules.html>

The Democratic Party’s new directive that candidates must have at least 130,000 donors<https://www.nytimes.com/2019/05/29/us/politics/democratic-debate-rules.html?module=inline> to qualify for the third primary debate in September arrived virtually without warning on Wednesday morning, and immediately sent shock waves through presidential campaigns worried that it would distort their priorities and affect the way they operate.

Two-thirds of the sprawling field of 23 candidates are probably at risk<https://twitter.com/natesilver538/status/1134081902149820418?s=21> of falling short of that threshold, and news of the more stringent rules set off a flurry of frustrated early-morning text messages, emails, calls and meetings as campaigns reassessed the path forward, according to multiple 2020 campaign officials.

While the Democratic National Committee had long intimated it would raise the bar to qualify for later debates, many 2020 strategists were stunned by the 130,000-donor threshold, which doubles the requirement for the first two debates in June and July and which few are close to hitting. Some candidates questioned whether the party’s new donor threshold would winnow the field too severely, before most voters even tune in to the race.

Most declined to discuss their frustration with the D.N.C.’s rules on the record or to indicate how exactly they would shift tactics, saying their campaign plans were confidential. But campaign after campaign said the party’s donor requirements are skewing the way they allocate resources, forcing them to choose between investing in staff or pouring more money into ads on sites like Facebook, where prices are soaring to dizzying new heights. Two campaigns said digital vendors are currently quoting them prices of $40 and up to acquire a new $1 donor.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>


“‘Let’s make a deal’: AOC and Ted Cruz (yes, that’s right) teaming up to fix Washington”<https://electionlawblog.org/?p=105371>
Posted on May 30, 2019 8:35 pm<https://electionlawblog.org/?p=105371> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/lets-make-a-deal-aoc-and-ted-cruz-yes-thats-right-teaming-up-to-fix-washington/2019/05/30/bb9dbbfa-832c-11e9-bce7-40b4105f7ca0_story.html?utm_term=.cc4baf01fcf6>:

Ocasio-Cortez tweeted an analysis from the watchdog group Public Citizen that found nearly 60 percent of former members from the last Congress who have jobs taken outside of politics are lobbying or influencing federal policy in some way, including Joseph Crowley (D), the high-ranking Democratic congressman she beat in the primary.
“I don’t think it should be legal at ALL to become a corporate lobbyist if you’ve served in Congress,” Ocasio-Cortez wrote.

Shortly thereafter, Cruz retweeted her and put in motion the most shocking political pairing in American history, or at least in recent memory.

“Here’s something I don’t say often: on this point, I AGREE with @AOC,” Cruz tweeted. “Indeed, I have long called for a LIFETIME BAN on former Members of Congress becoming lobbyists. The Swamp would hate it, but perhaps a chance for some bipartisan cooperation?”

So, Ocasio-Cortez posited this: If they could agree on a straight ban on members of Congress becoming paid lobbyists with no partisan add-ons, she would co-write the bill with him.

“@tedcruz if you’re serious about a clean bill, then I’m down,” she said. “Let’s make a deal.”

About 20 minutes later, Cruz responded: “You’re on.”
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Posted in lobbying<https://electionlawblog.org/?cat=28>


“Mysterious ‘vote-shaming’ mailer investigated ahead of Northern California special election”<https://electionlawblog.org/?p=105369>
Posted on May 30, 2019 8:29 pm<https://electionlawblog.org/?p=105369> by Rick Hasen<https://electionlawblog.org/?author=3>

Sacramento Bee<https://www.sacbee.com/news/politics-government/election/article230991123.html>:

Just days before a state Senate special election Tuesday<https://www.sacbee.com/news/local/article228465849.html>, a mysterious letter threatening to publicly expose voters who don’t cast ballots has begun appearing in mailboxes across Northern California, prompting a state inquiry into whether election laws have been violated.

Residents from Fair Oaks and Folsom to Rescue and Rocklin and beyond say they have received a mailer revealing neighbors’ and strangers’ voting history, and threatening to reveal their own voting records after the June 4 Senate District 1 special election “so we can see how we did together.”…

The Northern California State Voter Project does not have a website, phone number or public representatives, only a West Sacramento post office box number. The group is not listed as a campaign committee on the California Secretary of State website.

Kiley’s campaign had “nothing to do with” the mailer, said spokeswoman Emily Humpal.

Dahle’s campaign did not respond to requests for comment.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>


Nevada: “Governor Sisolak vetoes Presidential popular vote compact bill”<https://electionlawblog.org/?p=105367>
Posted on May 30, 2019 1:47 pm<https://electionlawblog.org/?p=105367> by Rick Hasen<https://electionlawblog.org/?author=3>

KOLO<https://www.kolotv.com/content/news/Its-on-the-governors-desk-Nevada-set-to-join-popular-vote-compact-510410131.html>:

Governor Steve Sisolak has decided to veto a bill that would have put Nevada on the list of states casting their electoral college votes for the winner of the national popular vote for President, regardless of the vote totals in their states.

In a news release, the Governor writes, “Over the past several weeks, my office has heard from thousands of Nevadans across the state urging me to weigh the state’s role in our national elections. After thoughtful deliberation, I have decided to veto Assembly Bill 186<https://www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/6289/Overview>. Once effective, the National Popular Vote Interstate Compact could diminish the role of smaller states like Nevada in national electoral contests and force Nevada’s electors to side with whoever wins the nationwide popular vote, rather than the candidate Nevadans choose. I recognize that many of my fellow Nevadans may disagree on this point and I appreciate the legislature’s thoughtful consideration of this important issue. As Nevada’s governor, I am obligated to make such decisions according to my own conscience. In cases like this, where Nevada’s interests could diverge from the interests of large states, I will always stand up for Nevada.”
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Posted in electoral college<https://electionlawblog.org/?cat=44>


Sixth Circuit Unanimously Rejects Challenge to Kentucky Lobbyist/Campaign Contribution Rules<https://electionlawblog.org/?p=105365>
Posted on May 30, 2019 1:25 pm<https://electionlawblog.org/?p=105365> by Rick Hasen<https://electionlawblog.org/?author=3>

See the opinion in Schickel v. Moellman here<http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0110p-06.pdf>. Some rejections were on standing grounds and some on the merits.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, lobbying<https://electionlawblog.org/?cat=28>


“‘Engaging New Voters’ Report Shows Positive Impact of Nonprofits that Promote Voting and Nonpartisan Engagement”<https://electionlawblog.org/?p=105362>
Posted on May 30, 2019 12:56 pm<https://electionlawblog.org/?p=105362> by Rick Hasen<https://electionlawblog.org/?author=3>

Press release <https://www.nonprofitvote.org/engaging_new_voters-2/engaging-new-voters-2018-press-release/> about this new report<https://www.nonprofitvote.org/engaging_new_voters-2/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Some Thoughts on the Evidentiary Quandary Facing the Supreme Court Now in the Census Case<https://electionlawblog.org/?p=105359>
Posted on May 30, 2019 11:50 am<https://electionlawblog.org/?p=105359> by Rick Hasen<https://electionlawblog.org/?author=3>

See my tweet thread beginning here<https://twitter.com/rickhasen/status/1134168630743011328>:
[https://pbs.twimg.com/profile_images/1027236869476573184/PFqQJu6__bigger.jpg]<https://twitter.com/rickhasen>
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Rick Hasen<https://twitter.com/rickhasen>
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<https://twitter.com/rickhasen/status/1134168630743011328>


Some thoughts on the evidentiary quandary now facing #SCOTUS<https://twitter.com/hashtag/SCOTUS?src=hash> in the citizenship census case:
<https://twitter.com/rickhasen/status/1134164538092212224>
Rick Hasen<https://twitter.com/rickhasen/status/1134164538092212224>
✔@rickhasen<https://twitter.com/rickhasen/status/1134164538092212224>
Replying to @rickhasen<https://twitter.com/rickhasen/status/1134164538092212224>

Let's game out for a bit how the evidence of DOJ lying and the real reason for Secretary Ross's decision to include the citizenship question will get before the Supreme Court and what the Court will do with the information, if anything. /1<https://twitter.com/rickhasen/status/1134164538092212224>

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7<https://twitter.com/intent/like?tweet_id=1134168630743011328>
12:44 PM - May 30, 2019<https://twitter.com/rickhasen/status/1134168630743011328>
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Update:
[https://pbs.twimg.com/profile_images/957796956906115073/8uFCZbZd_bigger.jpg]<https://twitter.com/hansilowang>
<https://twitter.com/hansilowang>
Hansi Lo Wang<https://twitter.com/hansilowang>
✔@hansilowang<https://twitter.com/hansilowang>

 · 10h<https://twitter.com/hansilowang/status/1134144845377867778>
<https://twitter.com/hansilowang/status/1134144845377867778>

Replying to @hansilowang and 3 others<https://twitter.com/_/status/1134110529637818369>

6. Here's my write-up of the latest revelations about the #CitizenshipQuestion<https://twitter.com/hashtag/CitizenshipQuestion?src=hash> the Trump administration wants on the #2020Census<https://twitter.com/hashtag/2020Census?src=hash>[👇]https://www.npr.org/2019/05/30/728232221/gop-redistricting-strategist-played-role-in-push-for-census-citizenship-question …<https://t.co/J41LuFOzyH>
<https://t.co/J41LuFOzyH>
[https://pbs.twimg.com/card_img/1134144848561430528/lzTZqP4u?format=jpg&name=600x314]<https://t.co/J41LuFOzyH>
GOP Redistricting Strategist Played Role In Push For Census Citizenship Question<https://t.co/J41LuFOzyH>

A deceased redistricting specialist's documents suggest the citizenship question was added to redraw political maps to favor Republicans and non-Hispanic white people, according to new court filing.<https://t.co/J41LuFOzyH>
npr.org<https://t.co/J41LuFOzyH>

[https://pbs.twimg.com/profile_images/957796956906115073/8uFCZbZd_bigger.jpg]<https://twitter.com/hansilowang>
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Hansi Lo Wang<https://twitter.com/hansilowang>
✔@hansilowang<https://twitter.com/hansilowang>


7. UPDATE: @ACLU<https://twitter.com/ACLU> has informed the Supreme Court about Thomas Hofeller role in Trump admin's push for #CitizenshipQuestion<https://twitter.com/hashtag/CitizenshipQuestion?src=hash> and of the June 5 hearing at the U.S. District Court in Manhattan[👇]https://www.supremecourt.gov/DocketPDF/18/18-966/101439/20190530142417722_2019.05.30%20NYIC%20Respondents%20Notice%20of%20Filing%20--%20Final.pdf …<https://t.co/6gVYQk87by> pic.twitter.com/ihkiBuBeel<https://t.co/ihkiBuBeel>
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38 people are talking about this<https://twitter.com/hansilowang/status/1134170819985321985>

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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“New Memo Reveals the Census Question Was Added to Boost White Voting Power; Why it won’t matter to the Supreme Court’s conservatives.”<https://electionlawblog.org/?p=105357>
Posted on May 30, 2019 9:07 am<https://electionlawblog.org/?p=105357> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2019/05/census-memo-supreme-court-conservatives-white-voters-alito.html> for Slate. It begins:

If we had a fair Supreme Court not driven by partisanship in its most political cases, Thursday’s blockbuster revelation<https://www.nytimes.com/2019/05/30/us/census-citizenship-question-hofeller.html?action=click&module=Top%20Stories&pgtype=Homepage> in the census case would lead the court to unanimously rule in Department of Commerce v. New York<https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-966.html> to exclude the controversial citizenship question from the decennial survey. Those newly reveal documents show that the Trump administration’s purpose in putting the citizenship question on the upcoming census was not its stated one to help Hispanic voters under the Voting Rights Act, but rather to create policy that would be “a disadvantage to the Democrats” and “advantageous to Republicans and non-Hispanic Whites.” It’s difficult to produce a greater smoking gun than explicitly saying you are hoping to help the GOP by increasing white voting power. But this revelation, coming from the hard drive of a deceased Republican political operative and made available to Common Cause by his estranged daughter, is ironically more likely to lead the Republican-appointed conservative justices on the Supreme Court to allow the administration to include the question that would help states dilute the power of Hispanic voters.

It concludes:

The question whether it is permissible to draw districts in the way Hofeller wanted is an open one. Ed Blum<https://www.aclu.org/blog/racial-justice/affirmative-action/meet-edward-blum-man-who-wants-kill-affirmative-action-higher> brought a 2016 case, Evenwel v. Abbott<https://scholar.google.com/scholar_case?case=1873699076724766700&hl=en&as_sdt=6&as_vis=1&oi=scholarr>, in which the court unanimously rejected Blum’s argument that the state of Texas was constitutionally required to draw districts with equal numbers of eligible voters. But the majority opinion by Justice Ruth Bader Ginsburg did not go further and reach the question whether drawing districts in this way—which would exclude not just noncitizens but also children and felons from the count—violates the Constitution’s equal protection clause. “Because history, precedent, and practice suffice to reveal the infirmity of appellants’ claims, we need not and do not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population,” Ginsburg concluded.

Justices Clarence Thomas and Samuel Alito, however, wrote concurrences affirming their belief that states have the right to draw districts in this way. There is good reason to believe that the other conservative justices would come along should they have to decide the issue.

The newly revealed census documents may now give them the opportunity to do just that.

All of that means that the Supreme Court will likely go along with Ross’ true purpose in including the citizenship question on the census: to allow states to draw districts with equal numbers of voter-eligible persons rather than total persons. The smoking-gun evidence showing that government officials lied in offering the Voting Rights Act excuse for including the question likely will be seen by these justices as irrelevant if the real reason is a permissible one.

This is not how the census case should be decided. The government should have to offer its real reasons for taking government actions and defend its actions on those terms. And even if it is otherwise constitutionally permissible to experiment with different understandings of how to draw districts with equal populations under the equal protection clause, the government should not be able to do so if the purpose is to dilute the power of political adversaries and minority voters, as demonstrated in this case by the new revelations.

Thursday’s revelations should be damning. The ACLU is already seeking sanctions<https://www.aclu.org/legal-document/census-sanctions-motion> in the trial court in the census case for government officials lying about the real reason for including the citizenship question. But instead the revelations may help to prop up a case that should embarrass government lawyers to argue.
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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>
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http://electionlawblog.org<http://electionlawblog.org/>
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