[EL] ELB News and Commentary 1/11-12/20

[Daniel Tokaji]

Can Election Rules Be Changed After the Election?
<https://electionlawblog.org/?p=108917>
Posted on January 12, 2020 8:35 am <https://electionlawblog.org/?p=108917>
by Dan Tokaji <https://electionlawblog.org/?author=5>

That’s what the Oregon state legislature is alleged to have done in the
strange and fascinating case of the City of Damascus, in which a petition
for review
<https://electionlawblog.org/wp-content/uploads/Damascus-Pet-Rvw.pdf> is
pending before the Oregon Supreme Court. It’s been called the undead city
<https://www.pdxmonthly.com/articles/2019/9/23/the-curious-case-of-damascus-oregon-the-undead-city>,
because of its unusual history. Briefly, as recounted in that story and
ones here
<https://www.oregonlive.com/clackamascounty/2019/05/oregon-court-to-damascus-youre-a-city-whether-you-like-it-or-not.html>
 and here
<https://www.opb.org/news/article/oregon-damascus-legislature-disincorporation/>
:

   - In 2013, a vote was held on whether to disincorporate the city. The
   measure received a simple majority among those voting, but failed to
   achieve the absolute majority of all registered voters required by state
   law.
   - In 2015, the legislature passed a law allowing voters to
   disincorporate the city by simple majority, rather than absolute majority
   of all voters.
   - In May 2016, voters approved disincorporation by a simple majority.
   - Also in 2016, a circuit court judge declared the election result
   valid, allowing the disincorporation
   <https://www.oregonlive.com/clackamascounty/2016/06/judges_rules_that_damascus_dis.html>
to
   proceed in July.

Here’s what happened next, according to an attorney for the city, Ed
Trompke:

On May 1, 2019, the Oregon Court of Appeals held that a disincorporation
election held in May 2016 in the City of Damascus was not valid to dissolve
the City. In response, the Oregon Legislative Assembly adopted SB 226 in
June 2019 to overturn the court by retroactively changing the type of
majority needed to carry the election (from a majority of the registered
voters to a majority of those voting).

It’s that law
<https://olis.oregonlegislature.gov/liz/2019R1/Measures/Overview/SB226> which
is being challenged before the Oregon Supreme Court. Among its provisions
are that a disincorporation measure “shall be approved if *a majority of
the voters voting *on the question in the election votes in favor of
disincorporation” and that this “applies to Acts enacted or referred,
and *elections
held, before the effective date of this 2019 Act*” (emphasis added).

The city and its supporters argues
<https://electionlawblog.org/wp-content/uploads/Damascus-Reply.pdf> that
the state legislature has “retroactively change[d] the rules applicable to
elections in order to reverse the outcome,” citing *Bush v. Gore.* This is
essentially an argument that it violates the “lawlessness principle,” as Rick
has called it <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1413977>,
drawing on a lecture by Akhil Amar
<https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1787&context=fss_papers>.
The principle is that elections should be decided based on the “rules of
the game” in place on Election Day. The city and its advocates argues that
didn’t happen.

The state’s response
<https://electionlawblog.org/wp-content/uploads/Damascus-Rsp-Pet-Rvw.pdf>
appears
to acknowledge that the 2019 law applies retroactively to change the rules
of the 2016 election, at least as those rules were understood by the Oregon
appellate court. It characterizes the statute as authorizing a
disincorporation measure “even where the referral occurred prior to the
effective date [of the 2019 law].” But the state says this is entirely
consistent with the Oregon Constitution and the Fourteenth Amendment’s due
process and equal protection clauses.

The federal constitutional issue strikes me as an important one. And it’s a
reminder that, nearly twenty years after *Bush v. Gore*, we’re still
fighting over its meaning and import — thanks in no small part to the U.S.
Supreme Court’s continuing refusal
<https://blog.harvardlawreview.org/supreme-court-avoids-bush-v-gore-ii-in-ducking-pennsylvania-redistricting-controversy/>
to
acknowledge or clarify it. It remains the case that must not be named
<https://www.nytimes.com/2006/08/15/opinion/15tues4.html>, at least in that
court.

We may not get clarification of *Bush v. Gore* from the Damascus case. But
perhaps we’ll finally get some clarity on the accuracy of the biblical
prophesy: “Damascus will cease to be a city and will become a heap of
ruins.” Isaiah 17:1
<https://www.biblegateway.com/passage/?search=Isaiah+17%3A1&version=ESV>.

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Posted in Bush v. Gore reflections <https://electionlawblog.org/?cat=5>
“Digital Threats on 2020 Elections” <https://electionlawblog.org/?p=108915>
Posted on January 12, 2020 7:20 am <https://electionlawblog.org/?p=108915>
by Dan Tokaji <https://electionlawblog.org/?author=5>

NPR
<https://www.npr.org/2020/01/11/795599906/digital-threats-on-2020-elections>
interview
with Siva Vaidhyanathan. An excerpt:

MARTIN: So moving forward in 2020, as where we sit right now – obviously,
it’s an election year in the United States. And I assume most Americans are
very interested and concerned in that. Are there some things that people
should be looking out for?

VAIDHYANATHAN: Yeah. We’re likely to see in 2020 much of what we saw in
2016, which means the development of Facebook groups that are large are
going to be outside of the arm – the regulatory arm of Facebook itself.
Facebook groups devoted to dividing Americans, you know, fostering, you
know, Texas independence movements or anti-Semitic movements or any of
those efforts that, like, hit viscerally at our identity as Americans. And
those are likely to be supported by Russian influence or maybe even
domestic extreme influence.

And look. The goal is not necessarily to reelect Trump. It wasn’t really
the goal to elect Trump in 2016. The goal was to mess with us, so that no
matter who becomes president, the United States is harder to govern, and
that over the long run, democracy becomes harder to sustain.

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Posted in chicanery <https://electionlawblog.org/?cat=12>, political
polarization <https://electionlawblog.org/?cat=68>
Bloomberg Open to Spending $1 Billion to Elect A Democratic President
<https://electionlawblog.org/?p=108912>
Posted on January 12, 2020 7:13 am <https://electionlawblog.org/?p=108912>
by Dan Tokaji <https://electionlawblog.org/?author=5>

NYT
<https://www.nytimes.com/2020/01/11/us/politics/michael-bloomberg-spending.html>:
 “Michael R. Bloomberg
<https://www.nytimes.com/interactive/2020/us/elections/michael-bloomberg.html>
on
Saturday did not rule out spending a billion dollars of his own money on
the 2020 presidential race, even if he does not win the Democratic
nomination, and said he would mobilize his well-financed political
operation to help Bernie Sanders
<https://www.nytimes.com/interactive/2020/us/elections/bernie-sanders.html>
 or Elizabeth Warren
<https://www.nytimes.com/interactive/2020/us/elections/elizabeth-warren.html>
win
in November if either is the party nominee, despite their sharp policy
differences.”
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Posted in campaign finance <https://electionlawblog.org/?cat=10>
“North Carolina Republicans make last-minute plea to keep voter ID photo
requirement” <https://electionlawblog.org/?p=108910>
Posted on January 12, 2020 7:10 am <https://electionlawblog.org/?p=108910>
by Dan Tokaji <https://electionlawblog.org/?author=5>

AP
<https://www.wxii12.com/article/north-carolina-republicans-plea-voter-id-photo-requirement/30481475>
:

North Carolina Republican lawmakers made a last-minute plea on Friday to a
federal judge as they seek to save a photo identification requirement to
vote that had been set to begin with the March primary.

The GOP legislative leaders already have been turned away by U.S. District
Judge Loretta Biggs from entering the lawsuit that the NAACP filed against
other state officials to challenge the December 2018 law. They’re again
seeking to intervene while asking Biggs to suspend her decision last week
that prevents the photo ID mandate from being implemented for the time
being.

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Posted in voter id <https://electionlawblog.org/?cat=9>
“Why are felons in Minnesota stripped of their voting rights?”
<https://electionlawblog.org/?p=108908>
Posted on January 11, 2020 10:12 am <https://electionlawblog.org/?p=108908>
by Dan Tokaji <https://electionlawblog.org/?author=5>

Star Tribune
<http://www.startribune.com/why-are-felons-stripped-of-voting-rights-and-what-other-rights-do-they-lose/565227122/>
:

Minnesota is one of 18 states
<https://www.aclu.org/issues/voting-rights/voter-restoration/felony-disenfranchisement-laws-map>
where
felons may not vote until they complete post-incarceration supervision,
such as probation or parole. Others, like Michigan and Indiana,
automatically restore those rights upon release from prison….

Last fall, the American Civil Liberties Union filed a lawsuit against the
state of Minnesota
<http://www.startribune.com/aclu-of-minnesota-sues-state-to-restore-voter-rights-for-people-with-felonies/563561532/>
to
restore voting rights to those who have already served their time or were
sentenced to probation rather than incarceration.

The case is pending ….

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Posted in felon voting <https://electionlawblog.org/?cat=66>
“‘Online and vulnerable’: Experts find nearly three dozen U.S. voting
systems connected to internet” <https://electionlawblog.org/?p=108906>
Posted on January 11, 2020 6:05 am <https://electionlawblog.org/?p=108906>
by Dan Tokaji <https://electionlawblog.org/?author=5>

NBC
<https://www.nbcnews.com/politics/elections/online-vulnerable-experts-find-nearly-three-dozen-u-s-voting-n1112436>
:

[A] team of election security experts say that last summer, they discovered
some systems are, in fact, online.

“We found over 35 [voting systems] had been left online and we’re still
continuing to find more,” Kevin Skoglund, a senior technical advisor at the
election security advocacy group National Election Defense Coalition, told
NBC News…..

The National Institute of Standards and Technology, which provides
cybersecurity frameworks for state and local governments and other
organizations, recommends that voting systems should not have wireless
network connections.

All the systems Skoglund’s group found online were manufactured by ES&S.
The online systems were found in 11 states, in at least some precincts, as
well as in the District of Columbia. The states were: Florida, Wisconsin,
Michigan, Rhode Island, Illinois, Indiana. Kentucky, Minnesota,
Massachusetts, Nebraska and Mississippi

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Posted in voting technology <https://electionlawblog.org/?cat=40>
“Fact check: Are California Republicans having voter registration changed
without consent?” <https://electionlawblog.org/?p=108904>
Posted on January 11, 2020 5:59 am <https://electionlawblog.org/?p=108904>
by Dan Tokaji <https://electionlawblog.org/?author=5>

SacBee
<https://www.sacbee.com/news/politics-government/capitol-alert/article239135013.html>:
” Assemblywoman Melissa Melendez, R-Lake Elsinore, is echoing inaccurate
sentiments spread within conservative circles across the state that
California elected officials are purposefully disenfranchising Republican
voters by switching them to no party preference without consent.”
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Posted in voter registration <https://electionlawblog.org/?cat=37>
Breaking: SCOTUS Grants Cert in Political Robocall Case
<https://electionlawblog.org/?p=108901>
Posted on January 10, 2020 5:05 pm <https://electionlawblog.org/?p=108901>
by Dan Tokaji <https://electionlawblog.org/?author=5>

Here <https://www.supremecourt.gov/orders/courtorders/011020zr_i425.pdf> is
the order list showing the grant in Barr v. American Association of
Political Consultants
<https://www.scotusblog.com/case-files/cases/barr-v-american-association-of-political-consultants-inc/>.
The question presented in the cert petition
<https://www.supremecourt.gov/DocketPDF/19/19-631/122494/20191114172310115_Am.%20Assoc.%20of%20Political%20Consultants%20v.%20FCC%20and%20Barr%20-%20Pet.pdf>
(minus
citations):

The Telephone Consumer Protection Act of 1991 (TCPA), Pub. L. No. 102-243,
105 Stat. 2394, generally prohibits the use of any “automatic telephone
dialing system or an artificial or prerecorded voice” to “make any call” to
“any telephone number assigned to a * * * cellular telephone service.” 47
U.S.C. 227(b)(1)(A)(iii) (Supp. V 2017). The TCPA excepts from that
automated call restriction any “call made for emergency purposes or made
with the prior express consent of the called party.” In 2015, Congress
amended the TCPA to create an additional exception for calls “made solely
to collect a debt owed to or guaranteed by the United States.”

Respondents wish to use an automatic telephone dialing system or an
artificial or prerecorded voice to make calls to the cell phones of
potential or registered voters to solicit political donations and to advise
on political and governmental issues. The court of appeals held that the
government debt exception to the TCPA’s automated-call restriction violates
the First Amendment. The court further held that the proper remedy was to
sever the government debt exception, leaving the basic automated-call
restriction in place.

The question presented is as follows: Whether the government-debt exception
to the TCPA’s automated-call restriction violates the First Amendment, and
whether the proper remedy for any constitutional violation is to sever the
exception from the remainder of the statute.

Coverage from Bloomberg
<https://news.bloomberglaw.com/privacy-and-data-security/supreme-court-will-hear-robocall-debt-collection-case>
 and SCOTUSBlog
<https://www.scotusblog.com/2020/01/justices-grant-three-new-cases-2/>.
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Posted in campaigns <https://electionlawblog.org/?cat=59>

Daniel P. Tokaji

Associate Dean for Faculty | Ebersold Professor of Constitutional Law

The Ohio State University | Moritz College of Law

55 W. 12th Ave. | Columbus, OH 43210

614.292.6566 | tokaji.1 at osu.edu

>
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