[EL] ELB News and Commentary 7/23/20

[Rick Hasen]

Big (Quixotic?) Push to Get Supreme Court to Hold that Congress Has the Constitutional Power to Outlaw Super PACs<https://electionlawblog.org/?p=113360>
Posted on July 22, 2020 9:34 pm<https://electionlawblog.org/?p=113360> by Rick Hasen<https://electionlawblog.org/?author=3>

The cert petition in Lieu v. FEC <https://www.supremecourt.gov/search.aspx?filename=/docket/DocketFiles/html/Public/19-1398.html> is designed to get the Supreme Court to address an issue addressed by the D.C. Circuit in the earlier SpeechNow case but never addressed by the Supreme Court: is it constitutional for Congress to limit contributions to political committees that make only independent expenditures (so-called super pacs)? Some heavy hitters on the cert petition<https://www.supremecourt.gov/DocketPDF/19/19-1398/145853/20200618114634109_No.19-Petition.pdf>, and a number of amicus briefs urging cert., including one from legal scholars<https://www.supremecourt.gov/DocketPDF/19/19-1398/148371/20200722123846440_19-1398acLegalScholarsOfCampaignFinance.pdf> and one from political scientists<http://www.supremecourt.gov/DocketPDF/19/19-1398/148404/20200722140445391_19-1398%20-%20AmicusMD.pdf>.

I’m extremely skeptical that the Court would take this case (because a majority would agree with the D.C. Circuit in SpeechNow was right that the limits on contributions to super PACs are unconstitutional). And if the Court took the case, I believe it would only make campaign finance law even more deregulatory.

I say all this as someone who has written extensively<https://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300212453> that the Court’s current campaign finance jurisprudence is wrong, and that such limits should be constitutional. But I cannot imagine this Court agreeing. There’s no Justice among the conservatives who seems to swing even a bit on these issues.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, Plutocrats United<https://electionlawblog.org/?cat=104>, Supreme Court<https://electionlawblog.org/?cat=29>


“Key GOP Senator Sketches Plan To Boost Funding For Election Officials During COVID”<https://electionlawblog.org/?p=113358>
Posted on July 22, 2020 2:37 pm<https://electionlawblog.org/?p=113358> by Rick Hasen<https://electionlawblog.org/?author=3>

TPM<https://talkingpointsmemo.com/news/roy-blunt-senate-election-funding>:

Sen. Roy Blunt (R-MO) on Wednesday spelled out the approach the Senate will likely take in providing additional funding for election officials in the next round of pandemic legislation.

“I am very open to having that discussion about additional money to the states,” Blunt told TPM, after a Senate committee hearing on election preparations.

Blunt, who is close with Majority Leader Mitch McConnell (R-KY), chairs the Senate committee with jurisdiction over election issues and he is also member of the Senate Appropriations Committee.

Getting Blunt on board for more election funding will be key for election officials and voter advocates who are pushing for the additional federal support.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Two Upcoming ABA Election Programs<https://electionlawblog.org/?p=113356>
Posted on July 22, 2020 2:32 pm<https://electionlawblog.org/?p=113356> by Rick Hasen<https://electionlawblog.org/?author=3>

Registration link<https://www.americanbar.org/groups/departments_offices/meetings_travel_dept/annual-meeting/>

Wednesday, July 29, 2020
10:00 – 11:30 AM | Hacking Democracy: Elections and Beyond

Sponsored by: ABA Cybersecurity Legal Task Force, ABA Standing Committee on Law and National Security

Cosponsored by: Division for Public Education

Democracy is not inevitable. Right now, US democratic institutions are under tremendous stress as Americans struggle to hold them accountable to live up to our aspirations. Foreign adversaries also exploit and exacerbate the fissures and lack of public trust in institutions and processes, from elections to the justice system, while capitalizing on opportunities to engage in cyber assaults. Diverse strategies of disinformation, such as hack-and-leak or deep fake videos, often couched as news stories, amplify weaknesses and divisions of our own making to convince Americans to give up on rule of law and ideas of justice and democracy. This showcase program will explore digital threats against the U.S. democratic system, the current U.S. readiness to counteract these threats, and the way forward to protect our national security from hacking and disinformation.

Moderator:
Harvey Rishikof<https://www.law.temple.edu/contact/harvey-rishikof/>, Senior Counselor, ABA Standing Committee on Law and National Security and Senior Advisor, ABA Cybersecurity Legal Task Force, Washington, DC

Speakers:
Associate Justice Mariano-Florentino Cuellar<https://www.courts.ca.gov/28724.htm>, California Supreme Court, San Francisco, CA
Hon. James E. McPherson<https://www.army.mil/leaders/usa/bio/>, Under Secretary, Department of the U.S. Army, Arlington, VA
Suzanne Spaulding<https://www.csis.org/people/suzanne-spaulding>, Senior Advisor, Center for Strategic and International Studies (CSIS); former Department of Homeland Security Under Secretary for the National Protection and Programs Directorate; Liaison, ABA Cybersecurity Legal Task Force, member and former Chair, ABA Standing Committee on Law and National Security, Washington, DC

Friday, July 31

1:00 – 2:30 PM | The Power of Women in U.S. Elections

Sponsored by: Section of Civil Rights and Social Justice

Cosponsored by:  Senior Lawyers Division; Section of Dispute Resolution; Section of Dispute Resolution’s Women in Dispute Resolution Committee; Section of Real Property, Trust and Estate Law; Infrastructure and Regulated Industries Section; Center for Public Interest Law; Standing Committee on Election Law; Coalition on Racial & Ethnic Justice; Government and Public Sector Lawyers Division; Commission on Sexual Orientation and Gender Identity; Commission on Hispanic Legal Rights and Responsibilities; Commission on Racial and Ethnic Diversity in the Profession; Solo, Small Firm and General Practice Division; Standing Committee on Election Law; Criminal Justice Section; Division for Public Education; Commission on Women in the Profession; Standing Committee on the Law Library of Congress

This panel will address voter suppression, election protection, and voting rights reform strategies ahead of the November 2020 election. Strategies to reform the right to vote have historically been intended to protect and advance the voting rights of underrepresented communities. Some recent reforms, however, have sparked controversy. Same-day voter registration and restoration of the right to vote to formerly incarcerated citizens, for example, tend to increase the population of citizens who exercise their civic duty to cast a ballot. Other policies, such as highly partisan redistricting, voter purges, and voter identification policies, have the effect of suppressing or devaluing the votes of underserved and underrepresented citizens. The impact of these reforms falls heaviest on women, communities of color, low-income communities, voters with disabilities, and young voters. On this 100th Anniversary of the 19th amendment, panel members will explore the effects of efforts to curtail voting, focusing on the role of women, especially African American women, in seeking to exercise the right to vote and the influence of their votes on elections.

Moderator:
Angela J. Scott<https://connect.americanbar.org/network/members/profile?UserKey=a451a850-168f-433c-aeb7-f57e1f727711>, J.D., LL.M., Chair-Elect, ABA Section of Civil Rights and Social Justice; Civil Rights Attorney-Advisor, U.S. Department of Health & Human Services, Office of the General Counsel; Former Member of the Maryland Democratic State Central Committee, 10th District

Speakers:
Barbara Arnwine<https://gruber.yale.edu/justice/barbara-arnwine>, President & Founder, Transformative Justice Coalition; President Emeritus, Lawyers’ Committee for Civil Rights Under Law
Congressman James E. Clyburn<https://clyburn.house.gov/about-me/full-biography>, Majority Whip, third-ranking Democrat in the United States House of Representatives, South Carolina
Gilda Daniels<http://law.ubalt.edu/faculty/profiles/daniels.cfm>, Associate Professor, University of Baltimore School of Law, Baltimore, MD
Harmeet Dhillon<https://www.dhillonlaw.com/team-showcase/harmeet-k-dhillon/>, Co-Chair, Republican National Lawyers Association; Republican National Committeewoman for California, and founder, Dhillon Law Group, San Francisco, CA
Thomas A. Saenz<https://collegecampaign.org/tom-saenz/>, President and General Counsel, Mexican American Legal Defense and Educational Fund, Los Angeles, CA
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump lied to the Supreme Court. His new census order proves it.”<https://electionlawblog.org/?p=113354>
Posted on July 22, 2020 2:17 pm<https://electionlawblog.org/?p=113354> by Rick Hasen<https://electionlawblog.org/?author=3>

New Leah Litman:<https://www.washingtonpost.com/outlook/2020/07/22/executive-order-census-immigrants-undocumented/>

Beyond that rather glaring defect, however, the new executive order also confirms the theory behind the lawsuits challenging the administration’s earlier attempt to add a citizenship question to the census. When the administration attempted to do that, its lawyers made that preposterous claim that a citizenship question was necessary to enforce the Voting Rights Act. It was not; citizenship information had never been collected on the census while the Voting Rights Act was on the books. What’s more, this administration has never attempted to enforce the Voting Rights Act. Civil rights groups argued that the citizenship question would open the door to allowing states to draw districts based on the number of voters, rather than total population, to dilute the political power of Democrats.

When it invalidated that effort to manipulate the census, the court stopped short of saying the administration was purposefully trying to dilute the voting power of Democrats and Latino voters. Chief Justice John G. Roberts Jr., who wrote the majority opinion, only went so far as to say the administration had not been straightforward about its true reasons for adding a citizenship question.

Now the new executive order underscores that collecting citizenship information was always about drawing districts on the basis of citizens, or total voters, to reduce Democratic voting power.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>, Voting Rights Act<https://electionlawblog.org/?cat=15>


“Refusal to concede? Vote counting delays? Lefty groups brace for the worst.”<https://electionlawblog.org/?p=113352>
Posted on July 22, 2020 2:10 pm<https://electionlawblog.org/?p=113352> by Rick Hasen<https://electionlawblog.org/?author=3>

Greg Sargent WaPo column<https://www.washingtonpost.com/opinions/2020/07/22/refusal-concede-vote-counting-delays-lefty-groups-brace-worst/>:

In a recent interview<https://www.foxnews.com/politics/transcript-fox-news-sunday-interview-with-president-trump>, President Trump repeatedly refused to say whether he will accept the outcome of the voting this fall, while claiming vote-by-mail will “rig the election.” So it’s easy to imagine various nightmares: Trump might declare himself winner while many mail ballots remain uncounted, or refuse to concede if mail ballots tip the outcome against him, claiming a stolen election.

A coalition of progressive and liberal groups is now gearing up for the possibility of scenarios just like those.

The coalition — which is called “Protect the Results<https://protecttheresults.com/?rd=1&utm_campaign=&utm_medium=&utm_source=2020_0611_Press_PTR_SUA>” — now includes two dozen groups. Among them: Stand Up America, Indivisible, Communication Workers of America, Citizens for Responsibility and Ethics in Washington, Community Change Action, MoveOn, and Republicans for the Rule of Law.

Their plan: To begin building a grassroots network now that can be mobilized if any such nightmare scenario does materialize, to immediately put a big show of force into the streets to push back….

If the race comes down to one or two states — say, Wisconsin and Arizona are up in the air, or Florida is very close — and Trump retains an incredibly narrow lead on election day with large numbers of mail ballots still uncounted, Trump could declare victory.

If so, a lot depends on what elected Republicans say and do. With the base pressuring them to side with Trump in crowning himself the winner, a mass mobilization against this might make it harder.

“The extent to which it’s clear that the public is not going to accept attempts to manipulate election outcomes is going to weigh on leaders across the board,” Hasen told me. “Public protest is an important part of preserving democracy when elected leaders are breaking norms.”

A second scenario involves the media. As a group of elections experts recently pointed out<https://www.law.uci.edu/faculty/full-time/hasen/2020ElectionReport.pdf>, a tremendous amount is riding on whether the media adequately communicates it to the public if very large amounts of mail ballots remain uncounted on election night.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Trump’s assault on election integrity forces question: What would happen if he refused to accept a loss?”<https://electionlawblog.org/?p=113350>
Posted on July 22, 2020 2:04 pm<https://electionlawblog.org/?p=113350> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/trumps-assault-on-election-integrity-forces-question-what-would-happen-if-he-refused-to-accept-a-loss/2020/07/22/d2477150-caae-11ea-b0e3-d55bda07d66a_story.html>

President Trump’s relentless efforts to sow doubts about the legitimacy of this year’s election are forcing both parties to reckon with the possibility that he may dispute the result in November if he loses — leading to an unprecedented test of American democracy.

With less than four months before the election, Trump’s escalating attacks on the security of mail-in ballots and his refusal again this week to reassure the country that he would abide by the voters’ will have added urgency to long-simmering concerns among scholars and his critics about the lengths he could go to hold on to power.

“What the president is doing is willfully and wantonly undermining confidence in the most basic democratic process we have,” said William A. Galston, chair of the Brookings Institution’s Governance Studies Program. “Words almost fail me — it’s so deeply irresponsible. He’s arousing his core supporters for a truly damaging crisis in the days and weeks after the November election.”

Most legal experts said it is hard to envision that Trump would actually try to remain in office after a clear defeat by former vice president Joe Biden, considering the uproar that would follow such a challenge to U.S. democratic norms. Trump has previously said he offers up inflammatory ideas to provoke the media and his critics.

But his unwillingness to commit to a smooth transition of power has forced academics and political leaders — including, privately, some GOP lawmakers — to contemplate possible scenarios.

The resulting turmoil could surpass the contention over the outcome of the 2000 presidential election, confounding the legal system, Congress and the public’s faith in how the country picks its leaders. Such a crisis could also have long-lasting consequences for a nation that has already been rocked this year by the coronavirus pandemic, an economic collapse and a reckoning over racial injustice.

Among the possibilities: Trump could claim victory before the vote in key states is fully counted — a process that could take days or even weeks this year<https://www.washingtonpost.com/politics/barring-a-landslide-whats-probably-not-coming-on-nov-3-a-result-in-the-race-for-the-white-house/2020/06/22/88ada5fa-b181-11ea-8758-bfd1d045525a_story.html?itid=lk_inline_manual_12> because of the expected avalanche of absentee ballots.

He could also spend weeks refusing to concede amid a legal war over which votes are valid and should be included in the tally, according to legal and constitutional experts who are tracking Trump’s statements.

Or he could simply refuse to leave on Jan. 20 — a possibility Biden has discussed publicly….
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Posted in chicanery<https://electionlawblog.org/?cat=12>, Election Meltdown<https://electionlawblog.org/?cat=127>


“The Race-Blind Future of Voting Rights”<https://electionlawblog.org/?p=113348>
Posted on July 22, 2020 1:17 pm<https://electionlawblog.org/?p=113348> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

Jowei Chen and I just posted this article<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3658671>. It’s forthcoming in the Yale Law Journal, and its abstract is below:

A critical issue in any racial vote dilution case is the proportionality (or lack thereof) of a minority group’s representation: how well (or poorly) minority voters are represented relative to their share of the population. In an important recent opinion, Judge Easterbrook proposed replacing this proportionality benchmark with what we call the “race-blind baseline.” Under this approach, minority voters’ representation would be compared not to their population share but rather to the fraction of seats they would control if districts were drawn randomly and without the use of racial data. Unsurprisingly, conservative advocates have been quick to embrace Judge Easterbrook’s idea. The current Supreme Court, which has already dismantled part of the Voting Rights Act, may also be interested in adopting the race-blind baseline. Yet until now, no one has explored this benchmark’s implications: how it would affect minority representation as well as the partisan balance of power.

In this Article, we tackle these questions for the first time. We do so using a technique—the random generation of district maps by a computer algorithm—that has become the gold standard in partisan gerrymandering cases, but that has not previously been deployed in the context of race and redistricting. We find, first, that in most states, a non-racial redistricting process would yield substantially fewer districts where minority voters are able to elect their preferred candidates. Judge Easterbrook’s proposal would thus cause a considerable drop in minority representation. Second, we show that the minority opportunity districts that arise when lines are drawn randomly are quite different from the ones that now exist. They are less likely to pack minority voters and more apt to represent them through coalitions with white voters. And third, contradicting the conventional wisdom about the link between minority and partisan representation, we demonstrate that Democrats would not benefit from the elimination of opportunity districts under the race-blind baseline. Rather, in the southern states where the benchmark would have the biggest impact, it is Republicans who would gain a partisan edge.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Voting Rights For Georgians In Legal Debt Left Unclear By State Agencies”<https://electionlawblog.org/?p=113345>
Posted on July 22, 2020 12:00 pm<https://electionlawblog.org/?p=113345> by Rick Hasen<https://electionlawblog.org/?author=3>

Johnny Kauffman<https://www.wabe.org/georgia-state-agencies-foster-confusion-over-voting-rights-for-people-in-legal-debt/> for WABE.
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Posted in felon voting<https://electionlawblog.org/?cat=66>


In Worrisome Decision, 11th Circuit Panel on 2-1 Vote Rejects Challenge to Alabama Voter Identification Law Without Allowing a Trial<https://electionlawblog.org/?p=113343>
Posted on July 22, 2020 10:51 am<https://electionlawblog.org/?p=113343> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the opinion in Greater Birmingham Industries v. Alabama at this link<http://media.ca11.uscourts.gov/opinions/pub/files/201810151.pdf>.

This opinion is very troubling because the majority held it was appropriate to grant summary judgment to the state of Alabama despite evidence that at least some of the legislators who passed this law did so with racially discriminatory intent, despite the uncontroverted evidence that African-American voters are less likely than white voters to possess the right kinds of identification accepted for voting in Alabama, and despite the lack of any evidence in the record of a problem with the kind of voter fraud (impersonation fraud) that a voter id law can stop. And in this case, unlike the Crawford case in which the Supreme Court upheld Indiana’s strict voter id law, plaintiffs came forward with evidence of how the Alabama law was particularly burdensome on some state voters.

This case should have been allowed to go to trial to fully develop the evidence.
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Posted in election administration<https://electionlawblog.org/?cat=18>, The Voting Wars<https://electionlawblog.org/?cat=60>, voter id<https://electionlawblog.org/?cat=9>, Voting Rights Act<https://electionlawblog.org/?cat=15>


In Must-Read Piece on Dysfunction at the U.S. Election Assistance Commission, Jessica Huseman Reveals that Excellent Republican Commissioner Matt Masterson Was Forced Out by Von Spakovsky and EAC Commissioner McCormick for Being “Insufficiently Partisan”<https://electionlawblog.org/?p=113341>
Posted on July 22, 2020 9:40 am<https://electionlawblog.org/?p=113341> by Rick Hasen<https://electionlawblog.org/?author=3>

In my 2012 book, The Voting Wars<https://www.amazon.com/Voting-Wars-Florida-Election-Meltdown/dp/0300198248>, I chronicled how Congress created the United States Election Assistance commission in 2002 after the debacle of 2000’s Bush v. Gore, how the agency started out with great promise as one that could rise above partisan squabbles, and how Republicans worked to sabotage the commission almost from the start.

Jessica Huseman picks up the story in this must-read Propublica/Atlantic piece<https://www.propublica.org/article/how-voter-fraud-hysteria-and-partisan-bickering-ate-american-election-oversight>. It is a story of bureaucratic incompetence, Democratic passivity, and Republican malevolence. For those who follow these issues, it is a true American tragedy.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, election administration<https://electionlawblog.org/?cat=18>, Election Assistance Commission<https://electionlawblog.org/?cat=34>, The Voting Wars<https://electionlawblog.org/?cat=60>


“A democracy cannot rely on luck:” Crucial Norm Ornstein Column in The Atlantic: “The November Election Is Going to Be a Mess Disaster is avoidable—if lawmakers act now.”<https://electionlawblog.org/?p=113339>
Posted on July 22, 2020 9:20 am<https://electionlawblog.org/?p=113339> by Rick Hasen<https://electionlawblog.org/?author=3>

Among Norm’s<https://www.theatlantic.com/ideas/archive/2020/07/november-election-going-be-mess/614296/> excellent suggestions:

1. Print a huge supply of absentee ballots and return envelopes. If state and local election officials can’t afford to do so, they can establish public-private partnerships, using resources from foundations, corporations, and others to get it done.

2. Make large numbers of these absentee ballots available at every polling place on early-voting days and on Election Day—but especially at those precincts where long lines can reasonably be expected

3. Let voters whose absentee ballot did not arrive in the mail get one at the polling place, where they can fill it out on the spot—or take it somewhere nearby to do so—then deposit it in a safe receptacle at the polling place. Give them a separate line at polling places, to shorten the one for those with no problems. This strategy worked well in Kenton County, Kentucky, in its primary.

4. Allow any voter who fears waiting in line for hours the option of filling out an absentee ballot and submitting it at the polling place. Voters would have to attest, under penalty of perjury, that they are qualified to vote in that precinct.

5. In states that require signatures on absentee ballots to be notarized, recruit local notaries to provide their service at the polling places where long lines and delays are expected.

6. Urge high schools, colleges, and universities to recruit students to act as poll workers. Train them at the schools, and give them credit for their service….

Congress, too, could play a constructive role by holding hearings on the Electoral Count Act and, ideally, enact revisions before November. Among them could be providing more flexibility for electors to cast their votes, adjusting subsequent deadlines if vote counting is not complete by the December deadlines, and offering better guidelines on resolving contested electoral slates. For example, if some states do not end up having their electoral votes counted, will 270 votes still be required to declare a presidential winner? Congress must plan for all possibilities. That includes the prospects that the pandemic may bar Congress from holding sessions on the crucial dates, starting with swearing in members on January 3. Even if congressional procedures currently in use in the House for remote voting by proxy remain, they in no way cover convening a new Congress, where no rules exist, much less all of the members taking their oath of office. The Senate, meanwhile, has no contingency plan at all.
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Posted in election administration<https://electionlawblog.org/?cat=18>, Election Meltdown<https://electionlawblog.org/?cat=127>


“Ranked Choice Voting in 2020 Presidential Primary Elections”<https://electionlawblog.org/?p=113337>
Posted on July 22, 2020 9:14 am<https://electionlawblog.org/?p=113337> by Rick Hasen<https://electionlawblog.org/?author=3>

New Fairvote report:<https://www.fairvote.org/ranked_choice_voting_in_2020_presidential_primary_elections>

Five state Democratic parties used ranked choice voting (RCV) in presidential primary elections and caucuses in 2020 with great success. Despite a global pandemic, all five states had high rates of success with RCV and, especially in the four states where all voters used RCV, secured accurate and comprehensive election results.

This report<https://fairvote.box.com/s/nio79ymdmpiqjpqen241fbs07akk5smx> examines the results from those states based on ballot data. Results show that voters overwhelmingly took advantage of the option to rank candidates on the ballot, made very few errors, and turned out in large numbers. In a year when millions of early voters in states without RCV cast ballots for presidential candidates who had withdrawn by the time they were counted, RCV made more votes count.
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Posted in alternative voting systems<https://electionlawblog.org/?cat=63>


“Meet the candidates to redraw Michigan’s political boundaries”<https://electionlawblog.org/?p=113335>
Posted on July 22, 2020 9:11 am<https://electionlawblog.org/?p=113335> by Rick Hasen<https://electionlawblog.org/?author=3>

The Detroit News reports.<https://www.detroitnews.com/story/news/politics/2020/07/22/meet-candidates-redraw-michigans-political-boundaries/5461317002/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump’s Memorandum on Not Counting Undocumented Immigrants for Purposes of House Reapportionment Calculations”<https://electionlawblog.org/?p=113333>
Posted on July 22, 2020 9:10 am<https://electionlawblog.org/?p=113333> by Rick Hasen<https://electionlawblog.org/?author=3>

Marty Lederman deep dive begins here<https://balkin.blogspot.com/2020/07/trumps-memorandum-on-not-counting.html>:

Contrary to what you might have read, President Trump’s “Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census,”<https://www.whitehouse.gov/presidential-actions/memorandum-excluding-illegal-aliens-apportionment-base-following-2020-census/> which he issued yesterday, doesn’t change the way the Department of Commerce will conduct the 2020 census.  It is, instead, an announcement of the way that Trump himself plans to report the results of that census to Congress next January, for purposes of establishing how the 435 members of the House of Representatives will be allocated, or “apportioned,” among the 50 States.  In short, Trump has announced that he won’t include “aliens who are not in a lawful immigration status under the Immigration and Nationality Act” in his calculation of how many House seats are to be apportioned to each State.  (I’ll refer here to these individuals as “undocumented immigrants,” although that shorthand might be imprecise:  it’s possible that some “undocumented” aliens have a “lawful immigration status,” depending on how Trump implements his self-described category of individuals.)

As I explain in the back end of this post, if the President follows through on this plan next January, he’ll violate a federal statute and cause the federal Government to violate two provisions of the Constitution.  Indeed, the legal question isn’t really a close one:  What Trump is threatening to do is inconsistent not only with the way the Supreme Court has interpreted the Constitution and the relevant statutes, but also with the way the Department of Justice has long construed those legal directives.  Therefore if DOJ—the Office of Legal Counsel, in particular—signed off on this memorandum, that approval was inexplicable.  And if, on the other hand, DOJ properly advised Trump that this would be illegal but he decided to do it, anyway, then that’d be inexcusable.

Before I address the merits, however, a few words are in order on just what Trump decreed yesterday; the likelihood that he can and will follow through on his threat; and the possible means of remedy if he does so.
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Posted in census litigation<https://electionlawblog.org/?cat=125>


“Matt Gaetz appears to run afoul of House ethics rules; The Florida Republican spent thousands of dollars on a speechwriting consultant, and the construction of a private studio.”<https://electionlawblog.org/?p=113331>
Posted on July 22, 2020 8:59 am<https://electionlawblog.org/?p=113331> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico reports.<https://www.politico.com/news/2020/07/22/gaetz-florida-house-ethics-rules-377098?nname=playbook&nid=0000014f-1646-d88f-a1cf-5f46b7bd0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=630318>
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Posted in conflict of interest laws<https://electionlawblog.org/?cat=20>, ethics investigations<https://electionlawblog.org/?cat=42>


“The states at the center of the 2020 voting crisis”<https://electionlawblog.org/?p=113329>
Posted on July 22, 2020 8:55 am<https://electionlawblog.org/?p=113329> by Rick Hasen<https://electionlawblog.org/?author=3>

Axios report<https://www.axios.com/states-to-watch-2020-voting-6211b139-656d-432c-adc4-61d067121558.html?utm_source=newsletter&utm_medium=email&utm_campaign=newsletter_axiosam&stream=top>s.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


William and Mary Election Law Program Seeks Program Manager<https://electionlawblog.org/?p=113327>
Posted on July 22, 2020 8:52 am<https://electionlawblog.org/?p=113327> by Rick Hasen<https://electionlawblog.org/?author=3>

Announcement:

The Election Law Program at William & Mary Law School seeks a full-time Program Manager. The Program Manager will be responsible for implementing a grant ELP has received to expand the resources it provides judges on state election codes, including its pilot eBenchbook<http://www.ebenchbook.org/> website. The Program Manager will be primarily responsible for recruiting state election experts to create eBenchbooks in their state, conducting legal research on state election codes and remedies, and supervising student research. The Program Manager will help implement the ELP’s strategic plan and oversee ELP projects as directed. This is a full time position with benefits. Salary commensurate with experience. JD preferred; particularly interested in candidates with election experience. More information and the application portal can be found here<https://jobs.wm.edu/postings/39302>. Questions about the position can be directed to Rebecca Green (rgreen at wm.edu<mailto:rgreen at wm.edu>).
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Posted in election law biz<https://electionlawblog.org/?cat=51>


--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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http://electionlawblog.org<http://electionlawblog.org/>


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