[EL] ELB News and Commentary 11/22/19

[Rick Hasen]

“Why Everyone Is Angry at Facebook Over Its Political Ads Policy”<https://electionlawblog.org/?p=108172>
Posted on November 22, 2019 8:20 am<https://electionlawblog.org/?p=108172> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2019/11/22/technology/campaigns-pressure-facebook-political-ads.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“It May Take a Month to Name California’s Winner on Super Tuesday”<https://electionlawblog.org/?p=108170>
Posted on November 22, 2019 8:15 am<https://electionlawblog.org/?p=108170> by Rick Hasen<https://electionlawblog.org/?author=3>

WSJ:<https://www.wsj.com/articles/it-may-take-a-month-to-name-californias-winner-on-super-tuesday-11574418601>

Many counties are still testing the new or updated devices, while also preparing for state-mandated election changes, including allowing in-person voting 10 days before Election Day and broadening the number of people who can vote by mail for nearly half the state.

The changes also allow same-day voter registration at every polling location. They also add, for the first time for a presidential election, the ability for voters to submit missing signatures on vote-by-mail ballots no later than two days prior to the certification of the election, which could vary by county.

County elections officials will still have up to 30 days after Election Day to complete vote counting, auditing and certification.

“I’m telling people it’s no longer Election Day, it’s election month,” said Neal Kelley, the registrar of voters in Orange County.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“New York’s Preregistration Law Goes Into Effect January 1. Counties are not paying attention, but students will.”<https://electionlawblog.org/?p=108168>
Posted on November 22, 2019 8:12 am<https://electionlawblog.org/?p=108168> by Rick Hasen<https://electionlawblog.org/?author=3>

New post <https://thecivicscenter.org/blog/2019/11/21/new-yorks-preregistration-law-goes-into-effect-january-1-counties-are-not-paying-attention-but-students-will> at the Civics Center.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“‘A spectacular fall from grace’: State commission levies big fine on Contra Costa elections chief who pocketed campaign funds”<https://electionlawblog.org/?p=108166>
Posted on November 22, 2019 8:10 am<https://electionlawblog.org/?p=108166> by Rick Hasen<https://electionlawblog.org/?author=3>

Mercury News<https://www.mercurynews.com/2019/11/21/a-spectacular-fall-from-grace-state-commission-levies-fine-on-contra-costa-elections-chief-who-pocketed-campaign-funds/>:

A state ethics commission on Thursday fined former Contra Costa County elections chief Joe Canciamilla $150,000 — one of its largest penalties of the year — for illegally spending $130,529 of campaign funds<https://www.eastbaytimes.com/2019/11/08/borenstein-canciamilla-pocketed-campaign-funds-for-personal-use/> on a vacation in Asia, a remodel of his Hawaii home and other personal expenses in the last several years.
The Fair Political Practices Commission leveled the fine by unanimously approving a settlement<http://www.fppc.ca.gov/content/dam/fppc/documents/Stipulations/2019/November/3.%20Joseph%20Canciamilla%20-%20Stip.pdf> stemming from a Franchise Tax Board audit that revealed Canciamilla violated campaign laws more than 30 times, then provided false information and doctored bank statements to hide his financial misconduct.
At Thursday’s meeting in Sacramento, commissioner Allison Hayward said she finds it “particularly repugnant” when politicians direct campaign funds for personal use
“It’s not about moving country forward,” she said. “This is taking resources supposed to be doing that and sucking it into someone’s personal lifestyle. It’s misleading donors and has a smell of fraud to it. Then there’s the tax evasion.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Could California Appeal Today’s California Supreme Court Ruling on Presidential Candidate Tax Return Disclosure To SCOTUS? Maybe, Under Cases Arising Out of the 2000 Bush v. Gore Race<https://electionlawblog.org/?p=108164>
Posted on November 21, 2019 4:37 pm<https://electionlawblog.org/?p=108164> by Rick Hasen<https://electionlawblog.org/?author=3>

I was in meetings for much of the day and just got around to reading the California Supreme Court’s unanimous decision <https://www.horvitzlevy.com/R5FD3S351/assets/files/Documents/S257302.PDF> (with one concurring Justice writing separately) in Patterson v. Padilla. The state high court holds that it violates a provision of the state constitution (requiring “recognized” presidential candidates to appear on the primary ballot) to require disclosure of the candidate’s tax return before inclusion on the ballot.

Because this is a holding under the state constitution, this would ordinarily be the end of the line. One cannot appeal a question about the scope of the state constitution to the United States Supreme Court.

But I was reminded in reading this opinion of the U.S. Supreme Court’s decision in Bush v. Palm Beach County Canvassing Board and the concurring opinion of Chief Justice Rehnquist in Bush v. Gore. In a nutshell, the Constitution’s Article II gives the state legislature very broad right to set the rules for presidential elections. In the Palm Beach County case, the Supreme Court unanimously suggested that a Florida supreme court determination that a rule for recounts was mandated by the state of Florida’s constitution would violate Article II. Under the independent state legislature doctrine (see this thorough piece <https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=1615&context=lr> by Hayward Smith), the state legislature gets to trump even the state constitution under Article II when it comes to setting the rules for choosing presidential electors. The Bush v. Gore concurrence offered a similar theory.

To be clear: I’ve never bought this theory and think it is dangerous. I also think the tax return provision passed by the California legislature is deeply problematic because of the race to the bottom it could cause. But it is something that is intriguing to think about. (I also don’t know if such an argument was waived if not raised earlier.)
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump may withhold tax returns and appear on ballot, California Supreme Court rules”<https://electionlawblog.org/?p=108162>
Posted on November 21, 2019 1:44 pm<https://electionlawblog.org/?p=108162> by Rick Hasen<https://electionlawblog.org/?author=3>

LAT:<https://www.latimes.com/california/story/2019-11-21/trump-taxes-ballot-california-supreme-court>

President Trump may appear on California’s primary ballot without having to disclose his tax returns, the state’s highest court decided Thursday.

In a unanimous ruling, the California Supreme Court said the requirement that presidential candidates must disclose their tax returns to appear on the March primary ballot violates the California Constitution.

At the Lectern<http://www.atthelectern.com/supreme-court-mostly-neutralizes-law-requiring-presidential-candidate-tax-return-disclosure/>:

The court’s unanimous opinion<https://www.horvitzlevy.com/R5FD3S351/assets/files/Documents/S257302.PDF> by Chief Justice Tani Cantil-Sakauye holds that a candidate who is “recognized,” as provided in the constitution, cannot be forced by a statute to release their tax returns as a condition of appearing on the ballot.  Instead, the court concludes, as to that candidate, “it is the voters who must decide whether the refusal . . . to make such information available to the public will have consequences at the ballot box.”

The court expressly leaves open whether the tax-return-disclosure requirement applies to candidates who seek to appear on the ballot by petition.  The law also apparently still applies to candidates for governor<http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=8902.&lawCode=ELEC>.
The court finds that the history of the constitutional mandate for “recognized” candidates to appear on the ballot “responded to concerns that voters in previous California presidential primary elections had not consistently been provided with an adequate choice among candidates for president.”
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Posted in campaigns<https://electionlawblog.org/?cat=59>


--
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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