[EL] ELB News and Commentary 11/7/19

Thu Nov 7 09:03:31 PST 2019

“Could Matt Bevin Steal the Kentucky Governor’s Election?”<https://electionlawblog.org/?p=107965>
Posted on November 7, 2019 8:59 am<https://electionlawblog.org/?p=107965> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece <https://slate.com/news-and-politics/2019/11/matt-bevin-andy-beshear-trump-stolen-kentucky-election.html> for Slate. It begins:

Will the Kentucky Legislature assist Matt Bevin in stealing the governor’s race from Democrat Andy Beshear, who appeared to have won<https://results.enr.clarityelections.com/KY/97213/web/#/detail/100> Tuesday’s election by about 5,000 votes? Ordinarily, I would consider the possibility preposterous. We do not live in ordinary times, though, and on Wednesday Kentucky Senate President Robert Stivers raised the prospect that his institution, not the voters, could determine the outcome of the race. If Stivers and Republican Kentucky legislators were to make such a hardball move without good evidence that there were major problems with the vote count, the election would likely end up in federal court, where it is anyone’s guess what would happen. Either way, that we’re even discussing this potentiality one year before Donald Trump—who has repeatedly challenged the vote totals in his 2016 election victory—is set to face reelection is a wrenching sign for our already-damaged democracy….

But Bevin may be doing more than that, and here’s where things can get weird. Kentucky has a set of rules to resolve contested elections, but those rules do not apply to a governor’s race. Instead, the state constitution provides that “Contested elections for Governor and Lieutenant Governor shall be determined by both Houses of the General Assembly, according to such regulations as may be established by law.” According to the Louisville Courier-Journal<https://www.courier-journal.com/story/news/politics/2019/11/06/beshear-vs-bevin-legislature-could-decide-race-senate-president-says/4174103002/>, the last time the Legislature resolved a governor’s race under this procedure was 1899.
Suppose, as seems most likely, that Bevin cannot come up with evidence of voter fraud or other problems that could plausibly swing a 5,000-vote margin. Would the Republican-dominated Legislature still attempt to hand the governorship back to Bevin? If it did hand Bevin the victory—even without evidence of fraud or major error—could federal courts refuse to review the decision as an action committed by the state legislature in accordance with the state constitution?

But there’s some question about whether the normal rules apply anymore. We have already seen Republican state legislatures in places like Wisconsin and North Carolina go so far as to strip powers from incoming Democratic governors. We’ve reached the point where it is conceivable that the Kentucky Legislature could go even further and make the election loser the winner. Stivers himself expressed support<https://www.dailykos.com/stories/2019/11/6/1897609/-Kentucky-Republicans-taking-steps-to-outright-steal-governor-s-election-they-just-lost> for Bevin, noting that the Libertarian gubernatorial candidate got 2 percent of the vote, more than the difference between Bevin and Beshear. Stivers remarked that “most of those votes … [w]ould have gone to Bevin.”
Stivers point would be an excellent one in arguing for the adoption of ranked choice voting, which would have allocated the Libertarian Party candidate’s votes to the voters’ second choice. But it is emphatically not an argument to overturn the results of a fair election run under rules giving the plurality winner the right to the seat. I am very wary—and often critical<https://slate.com/news-and-politics/2018/11/georgia-stacey-abrams-brian-kemp-election-not-stolen.html>—of claims<https://slate.com/news-and-politics/2017/06/donald-trumps-voter-fraud-commission-is-itself-an-enormous-fraud.html> of “stolen” elections, but if Stivers does what he is hinting at it would be a case where such a label would be justified….

It is not certain that federal courts would get involved, perhaps preferring to leave matters in the hands of political branches granted the power to resolve disputes under the state constitution. Still, Beshear would be able to raise arguments under the 14th Amendment’s equal protection and due process clauses. He could also point to the part of Bush v. Gore—the decision ending the 2000 presidential contest—that held “having once granted the right to vote on equal terms,” a state “may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” A system that declares the election loser the winner on arbitrary grounds would certainly value the votes for the loser over those of the winner.

Such an effort would also violate due process, which protects against arbitrary government treatment in elections. It calls to mind an important 1995 11th Circuit case, Roe v. Alabama,<https://casetext.com/case/roe-v-state-of-ala-by-and-through-evans> which found a due process violation when a state appeared to change the rules for conducting recounts for a state supreme court race after the election was held. If the Kentucky Legislature adopts new contest rules that deprive Beshear of fundamental fairness, that could violate due process under Roe.
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Posted in chicanery<https://electionlawblog.org/?cat=12>

Why Didn’t DOJ Share Whistleblower Complaint with FEC, and What About the Timing of FEC Commissioner Petersen’s Departure?<https://electionlawblog.org/?p=107963>
Posted on November 7, 2019 8:41 am<https://electionlawblog.org/?p=107963> by Rick Hasen<https://electionlawblog.org/?author=3>

Empty Wheel ponders.<https://www.emptywheel.net/2019/11/07/after-engaging-in-multiple-overt-acts-benefitting-a-conspiracy-bill-barr-has-kerri-kupec-commit-the-most-overt-act/>
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Posted in chicanery<https://electionlawblog.org/?cat=12>, Department of Justice<https://electionlawblog.org/?cat=26>, federal election commission<https://electionlawblog.org/?cat=24>

“New York Law School seeks to boost Census participation”<https://electionlawblog.org/?p=107960>
Posted on November 7, 2019 8:39 am<https://electionlawblog.org/?p=107960> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico Pro<https://subscriber.politicopro.com/article/2019/11/07/new-york-law-school-seeks-to-boost-census-participation-1226556>:

The New York Law School is launching a new institute that seeks to ensure that all communities are counted equitably in the upcoming 2020 Census as the decennial count faces roadblocks from the federal government.

The New York Census and Redistricting Institute will work with and inform public institutions, nonprofits and the public about laws and policies pertaining to the upcoming Census as well as city and state redistricting. Students will also be able to take advantage of research opportunities….

The school is partnering with Jeffrey Wice — a national census expert who has worked with state legislative leaders as well as congressional lawmakers — who will lead the institute, focusing on legal and policy efforts.
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Posted in census litigation<https://electionlawblog.org/?cat=125>

“Our Campaign Finance Nationalism”<https://electionlawblog.org/?p=107958>
Posted on November 7, 2019 8:35 am<https://electionlawblog.org/?p=107958> by Rick Hasen<https://electionlawblog.org/?author=3>

Gene Mazo has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3481153> on SSRN (forthcoming, Pepperdine Law Review). Here is the abstract:

This Article chronicles the history, structure, and contours of our “campaign finance nationalism.” I use this term to describe a system in which the funding of campaigns at the federal, state, and local levels is national in scope, despite the fact that voting is not. It is a system in which everyone is free to donate to a candidate across state lines, although only a resident of the candidate’s district can vote for him.

Part I contrasts our campaign finance nationalism with our voting rights federalism. The law views voting and campaigning as distinct activities, and each is governed by its own body of law. For the most part, voting is governed by state law. Since state law regulates voting differently in each state, the law of voting is emblematic of America’s voting rights federalism. The law of campaigning, by contrast, is national in scope. A major portion of it involves the doctrine of free speech. Since the First Amendment applies equally to all citizens, our campaign finance system largely ignores the federalism of voting. The only participation limits that our campaign finance system sets are based on national citizenship, as “foreign nationals” are precluded from making contributions or expenditures to influence any federal, state, or local election.

In Part II, I chronicle the history of our campaign finance nationalism. Concern with the influence that foreigners had over U.S. policymaking led Congress to enact the Foreign Agent Registration Act (FARA) in 1938. This law prohibited the agents of foreign principals from making contributions to political candidates. However, FARA’s statutory scheme contained loopholes. In 1974, when Congress was debating its amendments to the Foreign Election Campaign Act of 1971 (FECA), it adopted Senator Lloyd Bentsen’s proposal to ban foreign nationals from influencing U.S. electoral campaigns directly. After Citizens United was decided, this prohibition on foreign nationals was challenged in Bluman v. FEC, but the Bluman court upheld the ban on the grounds that foreigners are not members of the American political community.

As Part III explains, our campaign finance nationalism has several consequences. One is that it prevents individual states from restricting nonresident campaign contributions. Over the years, several states have tried to place limits on nonresident contributions, only to have their efforts be struck down. A second consequence is that the system readily encourages political candidates to seek campaign contributions from all across the country. As a result, candidates develop two distinct groups of people to whom they owe allegiance: voters and donors. I marshal evidence to show how, over time, members of Congress have become increasingly dependent on nonresident donors. Many academic authors, including Richard Briffault, Jessica Bulman-Pozen, Anthony Johnstone, Todd Pettys, and John Paul Stevens, have undertaken efforts to understand the effects of nonresident contributions and the justifications for them.

Part IV examines the difficulties of regulating our campaign finance nationalism. The provisions of the law prohibiting foreign spending in American elections have many loopholes, and policing them also turns out to be very hard to do in practice. If Russia’s aggressive actions during the 2016 election taught us anything, it is that our campaign finance system is vulnerable. I conclude by examining various efforts now being undertaken in Congress to prevent foreign influence from infiltrating American electoral campaigns.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>

California Supreme Court Likely to Strike Candidate Tax Return Law as Unconstitutional Under the State Constitution<https://electionlawblog.org/?p=107954>
Posted on November 6, 2019 7:10 pm<https://electionlawblog.org/?p=107954> by Rick Hasen<https://electionlawblog.org/?author=3>

SacBee report.<https://www.sacbee.com/news/politics-government/capitol-alert/article237000359.html>
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Posted in campaigns<https://electionlawblog.org/?cat=59>

Ninth Circuit Panel Skeptical of Poway Resident’s Attack on California Voting Rights Act<https://electionlawblog.org/?p=107952>
Posted on November 6, 2019 3:33 pm<https://electionlawblog.org/?p=107952> by Rick Hasen<https://electionlawblog.org/?author=3>

See this report<https://www.courthousenews.com/ninth-circuit-takes-new-swipe-at-ex-mayors-fight-of-voting-districts/> from Courthouse News Service.

Here<https://www.youtube.com/watch?v=bQP-Xm3bXQI> is the oral argument video.
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>

“Too Much Democracy is Bad for Democracy”<https://electionlawblog.org/?p=107950>
Posted on November 6, 2019 8:35 am<https://electionlawblog.org/?p=107950> by Richard Pildes<https://electionlawblog.org/?author=7>

That’s the title of my “must read” piece of the day, written by Jonathan Rauch and Ray LaRaja and published here<https://www.theatlantic.com/magazine/archive/2019/12/too-much-democracy-is-bad-for-democracy/600766/> in The Atlantic. The subtitle is: “The major American parties have ceded unprecedented power to primary voters. It’s a radical experiment—and it’s failing.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Supreme Court May Decide to Hear Major Campaign Finance Case This Week<https://electionlawblog.org/?p=107948>
Posted on November 6, 2019 8:14 am<https://electionlawblog.org/?p=107948> by Rick Hasen<https://electionlawblog.org/?author=3>

As early as Friday, the Supreme Court could announce it will hear a case that could put the nail into coffin of limits on campaign contributions to candidates. Here’s my preview in The Atlantic<https://www.theatlantic.com/ideas/archive/2019/07/campaign-finance-supreme-court/594751/> from last summer about this Paul Clement cert. petition.

Docket.<https://www.supremecourt.gov/docket/docketfiles/html/public/19-122.html>
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, Supreme Court<https://electionlawblog.org/?cat=29>

“Empower the FEC to Fight Election Crime; A depleted commission faces threats from Russia and beyond.”<https://electionlawblog.org/?p=107946>
Posted on November 6, 2019 7:21 am<https://electionlawblog.org/?p=107946> by Rick Hasen<https://electionlawblog.org/?author=3>

Bloomberg editorial.<https://www.bloomberg.com/opinion/articles/2019-11-06/federal-election-commission-needs-members-to-stop-2020-vote-crime?srnd=opinion>
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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>

“A Bevin-Beshear recount? Here’s what could happen in the Kentucky governor’s race”<https://electionlawblog.org/?p=107944>
Posted on November 6, 2019 5:59 am<https://electionlawblog.org/?p=107944> by Rick Hasen<https://electionlawblog.org/?author=3>

USA Today:<https://www.usatoday.com/story/news/politics/elections/2019/11/05/bevin-beshear-recount-what-happens-next-in-kentucky-governor-race/4174894002/>

To cap off one of the wildest finishes<https://interactives.courier-journal.com/election/2019-general/> to a gubernatorial election in Kentucky history, Democratic candidate Andy Beshear declared victory to supporters Tuesday night, moments after Republican incumbent Matt Bevin told supporters that he will not concede<https://www.courier-journal.com/story/news/politics/elections/kentucky/2019/11/05/kentucky-governors-race-2019-andy-beshear-leads-incumbent-matt-bevin/4096321002/> the race.
“This is a close, close race,” said Bevin, who trailed Beshear by 5,189 votes with 100% of precincts reporting across the state. “We are not conceding<https://www.courier-journal.com/videos/news/politics/ky-governor/2019/11/06/kentucky-governor-race-2019-gov-matt-bevin-refuses-concede-speech/4173804002/> this race by any stretch.”
Later that night, Kentucky Secretary of State Alison Lundergan Grimes told CNN her office had called the race<https://www.courier-journal.com/story/news/2019/11/05/allison-grimes-tells-cnn-her-office-declared-beshear-kentuckys-winner/4173273002/> for Beshear, as they do not believe the difference in the vote can be made up by Bevin.
As if matters couldn’t get more complicated, Republican Senate President Robert Stivers then told reporters that a joint session of the Kentucky General Assembly may eventually decide the winner<https://www.courier-journal.com/story/news/politics/2019/11/06/beshear-vs-bevin-legislature-could-decide-race-senate-president-says/4174103002/>, citing a provision in the state constitution that hasn’t been used in 120 years.
So … what now?
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

--
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
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http://electionlawblog.org<http://electionlawblog.org/>

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