[EL] ELB News and Commentary 9/27/19

Thu Sep 26 21:00:03 PDT 2019

Trump “jokes about driving people ‘frigging crazy’ with hints he might never leave WH”<https://electionlawblog.org/?p=107491>
Posted on September 26, 2019 8:54 pm<https://electionlawblog.org/?p=107491> by Rick Hasen<https://electionlawblog.org/?author=3>

Once again <https://www.latimes.com/politics/story/2019-09-26/trump-at-private-breakfast-who-gave-the-whistle-blower-the-information-because-thats-almost-a-spy> the President jokes<https://twitter.com/JenniferJJacobs/status/1177398075377299456> about not following the Constitution’s term limits requirements for President. Hilarious. (Actually, a very norm-crushing dangerous development.)
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Posted in chicanery<https://electionlawblog.org/?cat=12>

“A Dead Man’s Hard Drive Is the ‘Most Perfect’ Example of White Supremacy in Our Lifetime”<https://electionlawblog.org/?p=107489>
Posted on September 26, 2019 8:00 pm<https://electionlawblog.org/?p=107489> by Rick Hasen<https://electionlawblog.org/?author=3>

Michael Harriott <http://a%20dead%20man%27s%20hard%20drive%20is%20the%20%27most%20perfect%27%20example%20of%20white%20supremacy%20in%20our%20lifetime/> for The Root on the Hofeller Files.
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Posted in redistricting<https://electionlawblog.org/?cat=6>

FEC Chair Ellen Weintraub Releases Draft Letter Setting Forth Her View of FEC Law that Candidates Soliciting Opposition Research Not at Market Rates Violate the Federal Law<https://electionlawblog.org/?p=107487>
Posted on September 26, 2019 7:54 pm<https://electionlawblog.org/?p=107487> by Rick Hasen<https://electionlawblog.org/?author=3>

This cannot be acted on by an FEC without a quorum, and surely this would divide the commission along party lines, but Ellen Weintraub’s analysis <https://twitter.com/EllenLWeintraub/status/1177335224662921226> seems solid.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, federal election commission<https://electionlawblog.org/?cat=24>

Polarization and Political Reform<https://electionlawblog.org/?p=107479>
Posted on September 26, 2019 2:42 pm<https://electionlawblog.org/?p=107479> by Richard Pildes<https://electionlawblog.org/?author=7>

In a NYT article today<https://www.nytimes.com/2019/09/26/climate/kathryn-murdoch-climate-change-voting.html>, John Schwartz accurately quotes me as expressing skepticism about whether various political reforms are likely to fundamentally transform the hyerpolarized politics of our era. I want to elaborate briefly on those comments, since John could only take a single line from our lengthy conversation.

There are many political reforms I support, of course, including many mentioned in the article. I have written and litigated against partisan gerrymandering for decades; I support automatic voter registration; I’ve been a strong supporter<https://bigthink.com/u/richardpildes> for years of ranked-choice voting. Many good reasons exist to support these and other reforms, in my view.

But I think it’s a mistake for reformers to believe, or to advocate, that these reforms will dramatically reduce the hyperpolarized dynamic of our politics. As I said in the NYT piece, and wrote<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1646989> about at length back in 2010, the polarization of our politics didn’t begin recently. It began in the late 1970s and has been increasing relentlessly ever since. This polarization is the product of large historical and structural forces. And precisely because that’s the case, it’s not likely that there are magic-bullet, specific institutional reforms that will fundamentally transform our polarized politics.

Much of Western Europe is experiencing an increasingly polarized party dynamic as well in recent years, and many of these countries already have automatic voter registration and have their election districts (in countries that use districted elections) drawn by non-partisan bodies. The structural forces driving extreme polarization of democratic politics today are much deeper than can be cured by simple institutional changes.

We should still support political reforms that are likely to improve the democratic process in a variety of ways. But we should not mislead ourselves or others into thinking that these reforms can dissolve our hyperpartisan structure of politics. Indeed, promising more than reforms can plausibly deliver can undermine the cause of reform itself, as voters become cynical when reforms that have been over-sold fail to work out as voters have been promised.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Elections Could Expand Voting Rights This Fall. They Will Take Place in an ‘Intolerable Condition.'”<https://electionlawblog.org/?p=107480>
Posted on September 26, 2019 2:25 pm<https://electionlawblog.org/?p=107480> by Rick Hasen<https://electionlawblog.org/?author=3>

Daniel Nichanian:<https://www.appealpolitics.org/2019/voting-rights-are-on-the-line-kentucky-virginia/>

Hundreds of thousands of citizens are barred from voting in Kentucky, Mississippi, and Virginia’s elections this November. And whether they get to participate in future elections will be perversely decided by those who are already allowed to vote.

The electoral process “implicates every single thing about my current state, so to deny people the right to vote perpetuates an intolerable condition on human beings,” Shelton McElroy, a member of the grassroots group Kentuckians for the Commonwealth (KFTC) who is disenfranchised himself, said in reference to Kentucky’s exceptionally harsh<https://www.appealpolitics.org/2018/kentucky-disenfranchisement/> criminal disenfranchisement laws. People who are barred from voting are organizing<https://www.appealpolitics.org/2019/massachusetts-lawmakers-consider-restoring-voting-rights-but-organizers-are-not-waiting/> around the country<https://www.theguardian.com/us-news/2018/sep/09/us-prison-strike-latest-demands-voting-rights> to expand voting rights.
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Posted in felon voting<https://electionlawblog.org/?cat=66>

Kathryn Murdoch, Daughter-in-Law of Rupert, Putting Big Bucks Behind Election Reform Group<https://electionlawblog.org/?p=107477>
Posted on September 26, 2019 1:25 pm<https://electionlawblog.org/?p=107477> by Rick Hasen<https://electionlawblog.org/?author=3>

John Schwartz<https://www.nytimes.com/2019/09/26/climate/kathryn-murdoch-climate-change-voting.html> in the NYT:

Now, working with the nonpartisan group Unite America<https://www.uniteamerica.org/>, she is connecting like-minded organizations that are trying to overhaul the democratic process of voting to make it less likely to reward partisanship<https://www.uniteamerica.org/firstgrants>. She is also raising funds to ensure that the network will be effective.

She and her husband have already invested millions in their work toward these ends, and are “anchor funders” in the larger plan, she said, with an ultimate goal that she characterized as being in the “nine figures.” (While she declined to be more specific, the lowest nine-figure number is $100 million.)…

She took a deep dive into possible solutions to partisan deadlock and reviewed the players in the diffuse field known as democracy reform: Small groups that push for changes in the electoral system.
Some of the avenues her groups are pursuing include ranked-choice voting,<https://ballotpedia.org/Ranked-choice_voting_(RCV)> in which voters rank candidates in order of their preference. Proponents of this method argue that it reduces the tendency of primaries to reward candidates who work mainly to energize their base, and favors candidates who have the broadest appeal. She is also interested in initiatives to restrict gerrymandering and increase access to voting through proposals like automatic registration, as well as open primaries, in which voters do not need to declare their party affiliation….

Sounding a note of skepticism, Richard H. Pildes, a professor at New York University Law School and an expert on constitutional law and democracy, said that democracy reform efforts were laudable but a long shot. They “might have effects at the margins,” he said, but “these reforms are not likely to fundamentally transform our politics from this hyper-polarized era we’ve been in for nearly 40 years.”
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Posted in alternative voting systems<https://electionlawblog.org/?cat=63>, political polarization<https://electionlawblog.org/?cat=68>

“Disaster narrowly averted U.S. to remain in Universal Postal Union”<https://electionlawblog.org/?p=107475>
Posted on September 26, 2019 12:24 pm<https://electionlawblog.org/?p=107475> by Rick Hasen<https://electionlawblog.org/?author=3>

Tammy Patrick:<https://electionline.org/electionline-weekly/#tab-1>

Fortunately, Deputy Post Master General Ronald Stroman and Election Mail Management Specialist Dan Bentley understand that tens of millions of American voters receive their ballot not by a poll worker, but from their postal carrier; and that delivering democracy is one of the USPS’s most critical functions. Thankfully the United States Postal Service (USPS) championed the need to consider election mail in the UPU withdrawal conversation at the very highest level of the agency.

Yesterday, September 25, at the Extraordinary Congress meeting of the UPU in Geneva, an agreement was reached<https://www.nytimes.com/2019/09/25/business/universal-postal-union-withdraw.html> to remedy the disparity in rates to the satisfaction of the United States so that we will remain in the Union.  There will be no interruption in mail delivery globally. Ballots mailed out last week to voters will have the ability to be returned by post.
Disaster narrowly averted.

However, as details of the agreement unfold it will be important to understand the impact on prices for ballots.  CNBC reports<https://www.cnbc.com/2019/09/25/postal-compromise-close-as-us-pushes-global-mail-reforms-amazon-fedex-impact.html> “the bulk of the changes would apply to letters and packages, under 4.4 lbs., sent internationally. While a relatively small subset of global commerce, it captures military mail, absentee ballots, retail catalogs, trade journals and light e-commerce purchases.”  While we don’t anticipate that the increase will rival that of the prices private carriers, there may be changes to watch out for. Election officials should follow the Federal Voting Assistance Program’s guidelines<https://www.fvap.gov/eo/overview/sending-ballots/preparing-mail> on use of the proper postal indicia.
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Posted in election administration<https://electionlawblog.org/?cat=18>

“Congress Has Used Campaign Finance for Impeachment Before: Here’s How To Do It Now”<https://electionlawblog.org/?p=107473>
Posted on September 26, 2019 12:22 pm<https://electionlawblog.org/?p=107473> by Rick Hasen<https://electionlawblog.org/?author=3>

Ciara Torres-Spelliscy analysis<https://www.acslaw.org/expertforum/congress-has-used-campaign-finance-for-impeachment-before-heres-how-to-do-it-now/>.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>

“In rural Texas, black students’ fight for voting access conjures a painful past”<https://electionlawblog.org/?p=107471>
Posted on September 26, 2019 12:21 pm<https://electionlawblog.org/?p=107471> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/politics/in-rural-texas-black-students-fight-for-voting-access-conjures-a-painful-past/2019/09/24/fa18e880-ca69-11e9-a1fe-ca46e8d573c0_story.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

My Thoughts on the Whistleblower Complaint<https://electionlawblog.org/?p=107469>
Posted on September 26, 2019 8:31 am<https://electionlawblog.org/?p=107469> by Rick Hasen<https://electionlawblog.org/?author=3>

With the complaint<https://intelligence.house.gov/uploadedfiles/20190812_-_whistleblower_complaint_unclass.pdf> released today, I’ve been tweeting about the case in this thread<https://twitter.com/rickhasen/status/1177209008488235008>:
[cid:image002.jpg at 01D574AD.5D966800]<https://twitter.com/rickhasen>
<https://twitter.com/rickhasen>
Rick Hasen<https://twitter.com/rickhasen>
✔@rickhasen<https://twitter.com/rickhasen>

<https://twitter.com/rickhasen/status/1177209008488235008>

Among the most disturbing allegations are those of a cover up by White House lawyers and the deep involvement of AG Barr. He needs to resign or be removed from office immediately https://twitter.com/leahlitman/status/1177206059917668352 …<https://t.co/HPuQ8jL2lR>
<https://twitter.com/LeahLitman/status/1177206059917668352>
Leah Litman<https://twitter.com/LeahLitman/status/1177206059917668352>
✔@LeahLitman<https://twitter.com/LeahLitman/status/1177206059917668352>
Replying to @LeahLitman<https://twitter.com/LeahLitman/status/1177206059917668352>

"white house lawyers" who attempted to bury the call -- because they knew it presented a national security concern and/or such a breach of official duties it would be impeachable -- please show yourselves:<https://twitter.com/LeahLitman/status/1177206059917668352>
[View image on Twitter]<https://twitter.com/LeahLitman/status/1177206059917668352>

<https://twitter.com/intent/like?tweet_id=1177209008488235008>
1,618<https://twitter.com/intent/like?tweet_id=1177209008488235008>
6:11 AM - Sep 26, 2019<https://twitter.com/rickhasen/status/1177209008488235008>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
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688 people are talking about this<https://twitter.com/rickhasen/status/1177209008488235008>

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Posted in conflict of interest laws<https://electionlawblog.org/?cat=20>, ethics investigations<https://electionlawblog.org/?cat=42>
Justice Ginsburg Says Justice Kennedy Was Primary Author of Unsigned Majority Opinion in Bush v. Gore<https://electionlawblog.org/?p=107467>
Posted on September 25, 2019 8:06 pm<https://electionlawblog.org/?p=107467> by Rick Hasen<https://electionlawblog.org/?author=3>

Mark Sherman<https://twitter.com/shermancourt/status/1176983696747970561> of the AP:
[cid:image004.jpg at 01D574AD.5D966800]<https://twitter.com/shermancourt>
<https://twitter.com/shermancourt>
Mark Sherman<https://twitter.com/shermancourt>
✔@shermancourt<https://twitter.com/shermancourt>

 · Sep 25, 2019<https://twitter.com/shermancourt/status/1176974197534396418>
<https://twitter.com/shermancourt/status/1176974197534396418>

Kavanaugh among the attendees at RBG, Sotomayor event at @librarycongress<https://twitter.com/librarycongress> honoring O’Connor #SCOTUS<https://twitter.com/hashtag/SCOTUS?src=hash>
[cid:image004.jpg at 01D574AD.5D966800]<https://twitter.com/shermancourt>
<https://twitter.com/shermancourt>
Mark Sherman<https://twitter.com/shermancourt>
✔@shermancourt<https://twitter.com/shermancourt>

RBG identifies Kennedy as the author of the principal opinion in Bush v. Gore, which was an unsigned per curiam opinion. #SCOTUS<https://twitter.com/hashtag/SCOTUS?src=hash>
<https://twitter.com/intent/like?tweet_id=1176983696747970561>
715<https://twitter.com/intent/like?tweet_id=1176983696747970561>
3:15 PM - Sep 25, 2019<https://twitter.com/shermancourt/status/1176983696747970561>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
<https://twitter.com/shermancourt/status/1176983696747970561>
337 people are talking about this<https://twitter.com/shermancourt/status/1176983696747970561>

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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
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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