[EL] Supreme Court ruling in Rhode Island case; more news

[Rick Hasen]

Supreme Court, Over 3 Noted Dissents, Won’t Overturn Rhode Island Consent Decree Easing Absentee Ballot Requirements During the Pandemic<https://electionlawblog.org/?p=114041>
Posted on August 13, 2020 9:32 am<https://electionlawblog.org/?p=114041> by Rick Hasen<https://electionlawblog.org/?author=3>

Rhode Island loosened its witness and notary requirements for voting by mail as part of a consent decree in response to a lawsuit against the requirements during the pandemic. The RNC objected. Today the Supreme Court, over the dissents of Justices Alito, Gorsuch, and Thomas, rejected<https://www.supremecourt.gov/orders/courtorders/081320zr_8mjp.pdf> an attempt to scuttle the consent decree.

What’s different about this case, compared to the others where the Supreme Court has consistently sided with those who have opposed loosening voting rules during the pandemic? Here the state agreed to the change, and that–and the fact that the change has been in effect in the period just before the election— was enough apparently for Chief Justice Roberts and Justice Kavanaugh to change sides. Here’s the Court’s order

The application for stay presented to Justice Breyer and by him referred to the Court is denied. Unlike Merrill v. People First of Alabama, 591 U. S. _ (2020), and other similar cases where a State defends its own law, here the state election officials support the challenged decree, and no state official has expressed opposition. Under these circumstances, the applicants lack a cognizable interest in the State’s ability to “enforce its duly-enacted” laws. Abbott v. Perez, 585 U. S. , n. 17 (2018). The status quo is one in which the challenged requirement has not been in effect, given the rules used in Rhode Island’s last election, and many Rhode Island voters may well hold that belief.

Justice Thomas, Justice Alito, and Justice Gorsuch would grant
the application.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, Supreme Court<https://electionlawblog.org/?cat=29>


Is Kanye West Breaking the Law By Coordinating with the Trump Campaign While Running for President? Perhaps<https://electionlawblog.org/?p=114036>
Posted on August 13, 2020 9:20 am<https://electionlawblog.org/?p=114036> by Rick Hasen<https://electionlawblog.org/?author=3>

I’ve been getting a lot of questions about whether Kanye West, who is running for President and getting on the ballots in at least a few states<https://nymag.com/intelligencer/2020/08/what-the-hell-is-kanye-wests-campaign-about.html>, is somehow breaking campaign finance law by doing so given the possibility that he is running for office, at least in part, to help President Trump’s reelection<https://www.forbes.com/sites/randalllane/2020/08/06/exclusive-kanye-west-indicates-that-his-spoiler-campaign-is-indeed-designed-to-hurt-biden/#6513add46397> (by potentially siphoning votes away from Biden, though that’s far from clear<https://politicalwire.com/2020/08/12/trump-voters-more-favorable-to-kanye-west/>) and given that he has reportedly<https://www.forbes.com/sites/randalllane/2020/08/12/inside-kanye-wests-almost-daily-chats-with-jared-kushner-and-whether-the-white-house-exploits-his-mental-state/#3e8f8b193e16> been speaking “almost daily” with the President’s son-in-law Jared Kushner. Kushner is one of the key people running Trump’s reelection campaign<https://www.nytimes.com/2020/06/30/us/politics/trump-campaign-change-jared-kushner.html>.

West’s motivations alone in running for office cannot be the basis for a campaign finance violation. Third party candidates run for office for all sorts of reasons, and there’s nothing illegal about running for office while secretly (or openly) hoping your run will help another candidate.

The real issue is one of potential illegal coordination. A person can contribute up to $2,800 to a presidential campaign (and spend unlimited sums independent of that candidate to support that candidate’s run). When someone spends money supporting a candidate but does so in coordination with a candidate for office, that counts as a contribution and is subject to the $2,800 limit. West surely is spending more than $2,800 on his campaign. If he’s doing so in coordination with the Trump campaign to help Trump win, that could count as an excessive contribution to the campaign and be illegal.

But this is a really odd situation, and I cannot think of a case in which a candidate has been found to make an excessive contribution to another candidate by coordinating a spoiler run for office. I’m not sure how authorities would treat such a case, which would get into some difficult questions of motive.

The closest case I can think of on point is United States v. Goland, 959 F.2d 1449 (9th Cir. 1992). (Disclosure: I was a clerk to the author of this Ninth Circuit opinion, Judge David Thompson, when Goland was decided.) Goland involved a 1986 U.S. Senate race in California between the incumbent Alan Cranston (a Democrat) and his Republican opponent, Ed Zschau. Michael Goland was a Cranston supporter because of Cranston’s pro-Israel views. Goland spent $120,000 producing commercials supporting a right-wing, anti-Israel third party candidate, Ed Vallen with Vallen’s cooperation (Goland hid his identity and worked through a company because he thought Vallen would have rejected his help). Goland said he spent the money supporting Vallen in the hopes of siphoning votes away from Zschau. Cranston went on to narrowly win the election of Zschau.

At the time of the campaign, Goland could have given (or spent in coordination with a candidate) no more than $1,000 to any candidate for office, but could spend independently as much as he wanted. He claimed that the $120,000 he spent in coordination with Vallen was not an illegal excessive campaign contribution to Vallen because he was spending his money to support Cranston. The Ninth Circuit rejected the argument:

Goland asserts that his contributions were “independent expenditures” because he did not directly contribute to Vallen’s campaign and because he was secretly supporting Cranston’s reelection. Goland’s arguments lack merit.

Goland was charged with contributing to the Vallen campaign. He worked through his agent, Barnes, to fund and arrange the Vallen commercials. The independent expenditures exception to contribution limits does not apply to Goland because: (1) agents of Vallen and Goland were acting in concert; and (2) Vallen cooperated with Goland by accepting the money and performing the commercial. Goland intended to contribute to Vallen’s campaign, and it is immaterial to conviction under section 441a(a)(1)(A) that he did so in support of Cranston.

Goland stands for the proposition that t spending supporting a candidate for office done in cooperation with a candidate (or candidate’s committee) counts as a coordinated contribution subject to the contribution limits, and that secret motivations to help another candidate do not matter. The West situation is somewhat different, in that West is spending money on his own campaign allegedly in coordination with another campaign to help that other campaign. Perhaps this is close enough that the conduct is illegal. I’m not sure and perhaps there are other precedents on point I’m not aware of.

There’s one other wrinkle, an issue I’ve spent a lot of time on in discussing the Trump Tower meetings between Donald Trump Jr. and Russian operatives<https://electionlawblog.org/?p=93740> during the 2016 campaign: for such conduct to be criminal, one must act wilfully, knowing one is violating campaign finance laws. We don’t know much about West’s knowledge of campaign laws–most lay people know very little about such laws, but good candidates get advice from good campaign lawyers–but according to his spouse he is suffering from mental illness, which could well be relevant to his state of mind. Hard to know what his state of mind is from the outside. (Whether Kushner and the Trump campaign could also be found to have engaged in illegal activity seems easier given that this campaign has a large legal staff.)

Finally, nothing is likely to happen to West in the near term that would stop his candidacy on legal grounds. An FEC complaint will languish for years, and I hardly expect DOJ headed by Bill Barr (who has done everything to help President Trump’s political aims) to come out and go after West in real time.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>


“Trump blurts out his true motive on mail-in voting”<https://electionlawblog.org/?p=114034>
Posted on August 13, 2020 8:38 am<https://electionlawblog.org/?p=114034> by Rick Hasen<https://electionlawblog.org/?author=3>

Aaron Blake for WaPo<https://www.washingtonpost.com/politics/2020/08/13/trump-blurts-out-his-true-motive-blocking-post-office-funding-mail-in-voting/?hpid=hp_hp-banner-main_fix-ballots-10am%3Ahomepage%2Fstory-ans>:

Back in March, President Trump seemed to blurt out the real reason he opposes expanded voting by mail in the 2020 election. Referring to provisions in the Democrats’ coronavirus<https://www.washingtonpost.com/health/2020/02/28/what-you-need-know-about-coronavirus/?itid=lk_inline_manual_2> stimulus bill to vastly increase funding for voting by mail, he said on Fox News that the bill had “levels of voting that, if you ever agreed to it, you’d never have a Republican elected in this country again<https://www.washingtonpost.com/politics/2020/03/30/trump-voting-republicans/?itid=lk_inline_manual_2>.”

He’s doing it again.

Speaking with Maria Bartiromo on Fox Business Network on Thursday morning, Trump appeared to confirm that he opposes Democrats’ proposed funding for mail-in balloting and the U.S. Postal Service in order to make it more difficult to expand voting by mail.

“Now they need that money in order to make the post office work, so it can take all of these millions and millions of ballots,” he said. “But if they don’t get those two items, that means you can’t have universal mail-in voting, because they’re not equipped to have it.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Exclusive: Facebook cracks down on political content disguised as local news”<https://electionlawblog.org/?p=114032>
Posted on August 13, 2020 8:36 am<https://electionlawblog.org/?p=114032> by Rick Hasen<https://electionlawblog.org/?author=3>

Axios<https://www.axios.com/facebook-pages-news-exemption-e66d92ce-2abd-4293-b2ad-16cf223e12f1.html>:

Facebook is rolling out a new policy that will prevent U.S. news publishers with “direct, meaningful ties” to political groups from claiming the news exemption<https://www.facebook.com/business/help/387111852028957> within its political ads authorization process, executives tell Axios.

Why it matters: Since the 2016 election, reporters and researchers have uncovered over 1,200 instances<https://www.cjr.org/analysis/as-election-looms-a-network-of-mysterious-pink-slime-local-news-outlets-nearly-triples-in-size.php> in which political groups use websites disguised as local news outlets to push their point of view to Americans.
·         Now, Facebook is ensuring that Pages connected to those groups are held to the same standard as political entities when it comes to advertising on the platform.
·         The “news exemption” means that promoted content about social issues, elections or politics from news publishers is not labeled as political<https://www.axios.com/facebook-drops-controversial-policy-on-archiving-promoted-news-8535f0ba-317d-4755-99c1-25cff5988859.html> within Facebook’s political archive.

With the new policy, Pages on Facebook belonging to news outlets that are backed by political groups or people will still be allowed to register as a news Page<https://www.facebook.com/business/help/377680816096171?id=644465919618833> and advertise on Facebook, but they will no longer be eligible for inclusion in the Facebook News<https://www.facebook.com/news> tab, and they won’t have access to news messaging on the Messenger Business Platform or the WhatsApp business API.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Another fraught party divide in Wisconsin: most Republicans plan to vote in person, most Democrats by mail”<https://electionlawblog.org/?p=114030>
Posted on August 13, 2020 8:34 am<https://electionlawblog.org/?p=114030> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel:<https://www.jsonline.com/story/news/politics/elections/2020/08/12/vote-mail-brings-out-stark-divide-between-wisconsin-gop-democrats/3354938001/>

The signs in battleground Wisconsin increasingly point to a new and volatile election scenario: a big Democratic-leaning bloc of voters casting absentee ballots — and a big Republican-leaning bloc voting at the polls on Election Day.

Consider this finding from a statewide survey released<https://law.marquette.edu/poll/> Tuesday by the Marquette Law School:

Among people planning to vote absentee by mail, Joe Biden leads the race for president by 67 points.

Among people planning to vote in person on Election Day, Donald Trump leads by 41 points.

While exceptionally stark, those numbers echo the evidence of other polls<https://www.cbsnews.com/news/joe-biden-leads-wisconsin-pennsylvania-covid-opinion-poll/> and Wisconsin’s recent elections in the 2020 pandemic: that one party’s voters (Democrats) are embracing voting by mail<https://drive.google.com/file/d/1fqH-jLCyrO5lZ6Mugvj_77fXDc9aVHtc/view> far more than the other party’s (Republicans).

Such a big partisan divide over voting method raises some stark possibilities in a state widely viewed as a possible tipping point in the race for president.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“From the USPS to Kanye, Trump’s moves look like his eyes are on November”<https://electionlawblog.org/?p=114028>
Posted on August 13, 2020 8:28 am<https://electionlawblog.org/?p=114028> by Rick Hasen<https://electionlawblog.org/?author=3>

NBC News<https://www.nbcnews.com/politics/meet-the-press/usps-kanye-trump-s-moves-look-his-eyes-are-november-n1236589>:

With the conventions and the true sprint to the general election approaching, it’s a good time to take stock of the things President Donald Trump, his campaign and his administration have done that could influence the mechanics of the November election.

And we’ll note here: We’re not talking about the standard things — whether you think they’re ethical or not — that campaigns have historically done, like filing lawsuits to argue for voting rules that boost their political interests, or using their message in a way designed to depress the other side’s turnout.

We’re talking about tangible, deliberate, and unusual decisions made by the current president or his allies that could have an impact on the vote less than three months from now.

Here’s a taste of what we’re talking about, just from the last few weeks:
·         Trump installed a new Postmaster General (who was a campaign donor) who instituted<https://www.washingtonpost.com/politics/postal-service-backlog-sparks-worries-that-ballot-delivery-could-be-delayed-in-november/2020/07/30/cb19f1f4-d1d0-11ea-8d32-1ebf4e9d8e0d_story.html> new cost-saving measures that have slowed mail delivery nationwide and sparked fears about absentee ballot delays.
·         He explicitly said yesterday<https://www.washingtonpost.com/business/2020/08/12/postal-service-ballots-dejoy/> that he would block proposed emergency funding for the Postal Service, adding that USPS doesn’t “have the money to do the universal mail-in voting. So therefore, they can’t do it, I guess.
·         He appeared to put more stock<https://apnews.com/e98a8285f773403af163bc720d70fc2d> in an intelligence report finding that China prefers a Biden presidency than in Russian efforts to denigrate Biden, despite intelligence officials saying<https://www.nytimes.com/2020/08/07/us/politics/russia-china-trump-biden-election-interference.html> that pro-Trump election interference from Russia “was the far graver, and more immediate, threat.
·         He equated foreign interference from Russia to Democrats “meddling<https://www.politico.com/news/2020/08/10/trump-mail-voting-russian-interference-393264>” in the election because they are promoting mail-in balloting during the pandemic.
·         He suggested in a tweet<https://twitter.com/realDonaldTrump/status/1290967953542909952?s=20> that Florida’s mail-in ballots are more trustworthy than other states’ because Florida has had “two great Republican governors.”
·         The president’s son-in-law reportedly met in person with Kanye West<https://www.nytimes.com/live/2020/08/12/us/biden-vs-trump/kanye-west-who-is-pursuing-a-spot-on-the-2020-ballot-met-with-jared-kushner>, who is trying to get on ballots nationwide and recently did not deny<http://forbes.com/sites/randalllane/2020/08/06/exclusive-kanye-west-indicates-that-his-spoiler-campaign-is-indeed-designed-to-hurt-biden/#1294c02e6397> that he’s doing so as a spoiler to Biden’s campaign.
·         GOP operatives in at least four states have aided<https://www.nbcnews.com/politics/2020-election/republicans-least-four-states-are-helping-kanye-west-gain-ballot-n1235881> West’s attempts to get on the 2020 ballot
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“How Congress Could Diminish The Risks With Electoral-College Count”<https://electionlawblog.org/?p=114021>
Posted on August 13, 2020 8:04 am<https://electionlawblog.org/?p=114021> by Richard Pildes<https://electionlawblog.org/?author=7>

As this blog recently noted here<https://electionlawblog.org/?p=113857>, Senator Rubio has introduced legislation to change the two key dates in the federal law that governs the electoral college process. Ned Foley and I today published this op-ed<https://thehill.com/opinion/campaign/511816-how-congress-could-diminish-the-risks-with-electoral-college-count> in The Hill, aiming to reaching legislators, which strongly endorses Senator Rubio’s proposal. An excerpt:

The presidential election will take place, as scheduled by law, on Nov. 3rd.   To deal with the unique circumstances under which this election will be conducted, Senator Marco Rubio has smartly introduced a new bill<https://www.rubio.senate.gov/public/_cache/files/7c86cdcc-19c2-4abd-9164-bacc5e66a499/27CC6B97AB3A0618568E38775DD4B657.mcg20709.pdf> that would adjust two key – but now obsolete — dates in the federal law that governs the Electoral College process.  As we suggested<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3613163> back in May (and previously<https://www.liebertpub.com/doi/abs/10.1089/elj.2011.1032>), these changes make good sense, should be uncontroversial, and deserve widespread bipartisan support. . . .

Even in ordinary circumstances, the time pressures to complete an accurate vote count in the two months between Election Day and early January can be intense.  Back in 2000, when the issue was “merely” an accurate recount in one state, the process was still not complete five weeks after Election Day, when the Supreme Court’s decision in Bush v. Gore stopped any further recounting.

              This year is no ordinary circumstance and the challenges facing election officials nationwide are unprecedented.  In particular, the virus requires planning for a massive surge in absentee voting.  That means it is likely to take longer to complete the counting of all ballots.  The reason is not sinister; in many states, valid absentee ballots can arrive well after Election Day, and the process of verifying the integrity of those ballots takes time.  On top of that, some states, including potential swing states, have rules that block processing absentee ballots until Election Night or even later, which needlessly compounds these delays.  In addition, we have to anticipate court challenges to the process should the election be close.

              Senator Rubio’s bill is a simple acknowledgement of this new reality.  The Electoral Count Act, which his bill would amend, is the federal law that governs the Electoral College process.  Passed in 1877, it currently requires that process to take place in December, a reflection of much slower late-19th century transportation and communication networks.  But as Senator Rubio’s bill recognizes, for this year at least, accurate ballot-counting would benefit from permitting the Electoral College process to take place several weeks later, perhaps as late as early January.
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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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