[EL] ELB News and Commentary 6/25/20

Thu Jun 25 21:21:01 PDT 2020

Barr Tried to Interfere with Michael Cohen Campaign Finance Case in SDNY, With Implications for the President’s Own Liability<https://electionlawblog.org/?p=112585>
Posted on June 25, 2020 9:19 pm<https://electionlawblog.org/?p=112585> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/06/25/nyregion/geoffrey-berman-william-barr-michael-cohen.html?action=click&module=Top%20Stories&pgtype=Homepage>

But Mr. Barr spent weeks in the spring of 2019 questioning the prosecutors over their decision to charge Mr. Cohen with violating campaign finance laws, according to people briefed on the matter.

At one point during the discussions, Mr. Barr instructed Justice Department officials in Washington to draft a memo outlining legal arguments that could have raised questions about Mr. Cohen’s conviction and undercut similar prosecutions in the future, according to the people briefed on the matter.

The prosecutors in New York resisted the effort, the people said, and a Justice Department official said Mr. Barr did not instruct them to withdraw the case. The department official, who was not authorized to speak publicly about the matter, noted that Mr. Cohen was convicted and sentenced in December 2018, before Mr. Barr was sworn in, so there was little he could do to change the outcome of the case….

The New York Times reported previously that Mr. Barr had questioned the legal theory of the campaign finance charges against Mr. Cohen, but it was not known that the attorney general went so far as to ask for the draft memo or had raised his concerns more than once.

The memo, written by the Justice Department’s Office of Legal Counsel, addressed the Southern District’s somewhat novel use of campaign finance laws to charge Mr. Cohen. Before Mr. Cohen’s guilty plea, the only person known to face criminal charges for payments meant to keep negative information buried during a political campaign was the former senator and Democratic presidential candidate John Edwards, who was not convicted.<https://www.nytimes.com/2012/06/01/us/edwards-jury-returns-not-guilty-verdict-on-one-count.html>

Mr. Barr argued, among other things, that such cases might be better suited to civil resolutions by the Federal Election Commission than to criminal prosecutions, according to people with knowledge of the discussions.

Mr. Cohen, who reported to prison in May 2019, was recently released on furlough and is currently serving his sentence at his Manhattan home, after citing health concerns related to the coronavirus.

There is no indication that the Justice Department planned to issue a formal opinion on the campaign finances charges. Such a step, if taken, might have raised questions about the validity of the case against Mr. Cohen and affected any future effort to investigate Mr. Trump or others in his circle for similar conduct.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, chicanery<https://electionlawblog.org/?cat=12>

“Barr says, without citing evidence, that an election done predominantly by mail would not be secure”<https://electionlawblog.org/?p=112583>
Posted on June 25, 2020 8:32 pm<https://electionlawblog.org/?p=112583> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN reports.<https://www.cnn.com/2020/06/25/politics/barr-mail-in-voting-election-fraud-npr/index.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+rss%2Fcnn_allpolitics+%28RSS%3A+CNN+-+Politics%29>
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“Paterson City Council Vice President Among 4 Charged With Voting Fraud in May Special Election: NJ AG”<https://electionlawblog.org/?p=112581>
Posted on June 25, 2020 8:27 pm<https://electionlawblog.org/?p=112581> by Rick Hasen<https://electionlawblog.org/?author=3>

NBC New York<https://www.nbcnewyork.com/news/politics/paterson-city-council-vice-president-among-4-charged-with-voting-fraud-in-may-special-election-nj-ag/2484797/>:

A Paterson, New Jersey, councilman and a councilman-elect in the same city, along with two other men, face voting fraud charges in connection with the May 12 special election, the state attorney general’s office said Thursday.

Councilmember Michael Jackson, who serves as the council’s vice president, and councilman-elect Alex Mendez were among the four charged with criminal conduct involving mail-in ballots during May’s mail-in election, which was overshadowed almost from the start by widespread fraud allegations.

The Board of Elections previously said about 800 votes would be set aside and not counted<https://www.nbcnewyork.com/news/local/hundreds-of-mail-in-votes-already-set-aside-due-to-paterson-voter-fraud-claims/2414171/>, amid charges they were found improperly bundled in mailboxes in Paterson as well as at a drop box in nearby Haledon.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, chicanery<https://electionlawblog.org/?cat=12>

“The Pandemic Has Revealed America’s Impatience. But America Will Need Patience in the 2020 Election”<https://electionlawblog.org/?p=112579>
Posted on June 25, 2020 8:25 pm<https://electionlawblog.org/?p=112579> by Rick Hasen<https://electionlawblog.org/?author=3>

Ciara Torres-Spelliscy:<https://promarket.org/2020/06/25/the-pandemic-has-revealed-americas-impatience-but-america-will-need-patience-in-the-2020-election/>

The impact of the coronavirus on the daily lives of millions of Americans has demonstrated that patience is a virtue. But it is clearly a virtue that not everyone in the United States possesses, as politicians<https://www.politico.com/news/2020/05/22/trump-churches-evaneglicals-coronavirus-274842> and armed groups<https://www.bloomberg.com/news/articles/2020-05-14/michigan-cancels-legislative-session-to-avoid-armed-protesters> have demanded that America open back up despite the health risks of an ongoing pandemic.

Nonetheless, patience is something that Americans are going to need in November 2020 as election results slowly filter in. As others have said, move over, election day—welcome, “election week<https://www.startribune.com/mail-in-voting-could-turn-election-day-into-election-week/570823842/>.”

What I mean by “election week” is that many more American voters than usual are likely to vote by mail in the 2020 presidential elections<https://www.theatlantic.com/politics/archive/2020/04/voting-mail-2020-race-between-biden-and-trump/609799/> because of the pandemic. A bipartisan group of elections experts, including me, wrote about this in a recent white paper entitled Fair Elections During a Crisis<https://www.law.uci.edu/faculty/full-time/hasen/2020ElectionReport.pdf>, providing suggestions to elections officials and the media on how to conduct a fair 2020 election. The crises that were top of mind when we wrote the piece were Covid-19 and foreign cybersecurity threats. But most of the recommendations would also apply to the civil unrest of public protests<https://www.vox.com/2020/6/10/21283966/protests-george-floyd-police-reform-policy> against police violence as well.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Franita and Foley Podcast: “Is This the New Normal?”<https://electionlawblog.org/?p=112577>
Posted on June 25, 2020 8:18 pm<https://electionlawblog.org/?p=112577> by Rick Hasen<https://electionlawblog.org/?author=3>

Listen<https://soundcloud.com/freeandfair/is-this-the-new-normal>:

Long lines, machine breakdowns, absentee obstacles: As our country grapples with a pandemic, social uprising and divisive politics, voting is more challenging than ever. But what does complacency, voter disenfranchisement and rights infringement say about our election system, and will these issues persist after November? Election scholars Ned Foley (OSU Moritz College of Law) and Franita Tolson (USC Gould School of Law) look to history to consider the future, and debate whether or not the flawed process is capable of reflecting the electorate’s collective will.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Lobbyist Jack Abramoff Charged in Crypto-Currency Case, U.S. Says”<https://electionlawblog.org/?p=112572>
Posted on June 25, 2020 1:46 pm<https://electionlawblog.org/?p=112572> by Rick Hasen<https://electionlawblog.org/?author=3>

Bloomberg<https://www.bloomberg.com/amp/news/articles/2020-06-25/lobbyist-abramoff-charged-in-crypto-currency-case-u-s-says>:

Jack Abramoff, the onetime Washington insider who went to prison in a lobbying scandal, was charged with a criminal conspiracy related to cryptocurrency and lobbying disclosure, a U.S. prosecutor said.

Abramoff has agreed to plead guilty and faces as long as five years in prison, San Francisco U.S. Attorney David Anderson said Thursday at a press conference in San Francisco.

Separately, the U.S. Securities and Exchange Commission sued Abramoff, alleging he was part of a fraudulent and unregistered offer and sale of digital asset securities by NAC Foundation LLV, a company that was in early-stage development of a blockchain-based digital token called AML BitCoin….

In the early 2000s, Abramoff was at the center of a scandal that led to 20 convictions or guilty pleas, including two officials in President George W. Bush’s administration, a member of Congress, congressional aides and nine other lobbyists. Abramoff served 43 months in prison before he was released in 2010.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, lobbying<https://electionlawblog.org/?cat=28>

“Trump v. Biden: An Opinion for a Hypothetical Case”<https://electionlawblog.org/?p=112570>
Posted on June 25, 2020 1:44 pm<https://electionlawblog.org/?p=112570> by Rick Hasen<https://electionlawblog.org/?author=3>

Ned Foley has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3635687> on SSRN (forthcoming Ohio State L.J. Online). Here is the abstract:

In RNC v. DNC, the U.S. Supreme Court issued an important, but sharply divided, 5-4 ruling concerning the power of courts to remedy potentially outcome-determinative disenfranchisement in a major statewide election. The particular case involved Wisconsin’s April 2020 election for a seat on the state’s supreme court (as well as the presidential primary), but the same type of issue easily could arise in the context of the November 2020 general election. This essay imagines a hypothetical case closely related to the actual RNC v. DNC facts, but significantly different in key respects. First, the hypothetical remedy does not contain the specific flaw that caused the Court’s majority to modify the actual remedy in RNC v. DNC (namely, permitting voters to cast ballots for extra days after Election Day). Second, the hypothetical remedy is issued by a state supreme court, rather than a lower federal court. To consider whether these differences would be enough to avoid a similar 5-4 split, and instead might produce greater consensus within the Court, the essay offers a hypothetical opinion to reason through the legal analysis involving the hypothetical facts. Readers are invited to consider whether the reasoning of this hypothetical opinion is sound, or whether it too is vulnerable to the kind of jurisprudential disagreement that produced the sharp divide in RNC v. DNC.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

11th Circuit Rejects Alabama’s Motion for Stay on Virus-Related Election Changes to Make Voting Easier in Upcoming Runoff<https://electionlawblog.org/?p=112568>
Posted on June 25, 2020 1:34 pm<https://electionlawblog.org/?p=112568> by Rick Hasen<https://electionlawblog.org/?author=3>

Here is the order<https://www.naacpldf.org/wp-content/uploads/11th-Cir-Order-DENYING-Emergency-Stay-Motion.pdf>. And two of the judges had this to say about the Purcell principle: “Purcell is not a magic wand that defendants can wave to make any unconstitutional election restriction disappear so long as an impending election exists.”
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Posted in court decisions<https://electionlawblog.org/?cat=129>, Uncategorized<https://electionlawblog.org/?cat=1>

“Coronavirus Conversations: Elections and The Pandemic”<https://electionlawblog.org/?p=112566>
Posted on June 25, 2020 11:05 am<https://electionlawblog.org/?p=112566> by Rick Hasen<https://electionlawblog.org/?author=3>

June 26 Duke virtual event<https://scienceandsociety.duke.edu/events/coronavirus-conversations-elections-and-the-pandemic/>:

COVID-19 presents major challenges for the US election process. Measures necessary to protect the public and prevent the spread of the virus, like shelter-in-place orders, quarantine and self-isolation, and fear of infection will keep many Americans away from polling places in the fall. In-person voters must navigate lines and indoor voting locations that traditionally place people in close proximity, and interact with high-touch surfaces, to exercise their right to vote. Poll workers, who are traditionally older and therefore more at risk, are now in short supply. The act of voting itself has the ability to spark new rounds of contagion. Constructive policy solutions are needed to protect public health and the right to vote, especially for members of minority and lower socio-economic groups, who have already been disproportionately affected by the pandemic.

Join Duke Science & Society and our panel of experts in a discussion of how our election process is affected by the coronavirus pandemic, and what we must do to meet these challenges.

Panelists :

Professor Guy-Uriel Charles<https://law.duke.edu/fac/charles/>, J.D. Edward and Ellen Schwarzman Professor of Law, Duke University School Of Law

Dr. Anupam B. Jena<https://hcp.hms.harvard.edu/people/anupam-b-jena>, M.D, Ph.D. Ruth L. Newhouse Associate Professor of Health Care Policy, Department of Health Care Policy, Harvard Medical School; Associate Professor of Medicine and Assistant Physician in the Department of Medicine at Massachusetts General Hospital

Dr. Martha E. Kropf<https://publicpolicy.uncc.edu/directory/martha-e-kropf>, Ph.D. Professor, Department of Political Science and Public Administration; Professor Public Policy Program, UNC-Charlotte

Moderator:

Dr. Nita Farahany<https://law.duke.edu/fac/farahany/>, J.D., PhD, Director, Duke Initiative For Science & Society; Professor of Law and Philosophy, Duke University

RSVP for Connection Details…
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Skewing the Vote; Voter ID laws discriminate against racial and ethnic minorities, new study reveals Image”<https://electionlawblog.org/?p=112564>
Posted on June 25, 2020 11:03 am<https://electionlawblog.org/?p=112564> by Rick Hasen<https://electionlawblog.org/?author=3>

Release<https://ucsdnews.ucsd.edu/feature/skewing-the-vote>:

Voter ID laws are becoming more common and more strict, and the stakes for American democracy are high and growing higher by the year. New research from the University of California San Diego provides evidence that voter ID laws disproportionately reduce voter turnout in more racially diverse areas. As a result, the voices of racial minorities become more muted and the relative influence of white America grows.

In a study published in the journal Politics, Groups, and Identities<https://sites.google.com/ucsd.edu/zoltanlhajnal/select-publications?authuser=0>, researchers focused on turnout changes across the 2012 and 2016 presidential elections in states that had recently passed strict photo voter ID laws: Alabama, Mississippi, Virginia and Wisconsin and compared those changes to other states with similar racial compositions that had not passed laws. They found the turnout gap between white counties and racially diverse counties grew more within states enacting new strict photo ID laws.

Such results lead to “an already significant racial skew in American democracy growing even more pronounced,” according the authors.

Contrary to previous studies on voter ID laws, the researchers used actual voter turnout data, rather than surveys gauging attitudes towards voting.

“By using official turnout data, we eliminate concerns over inflated or biased turnout patterns from self-reported surveys,” said co-author Zoltan Hajnal<https://gps.ucsd.edu/faculty-directory/zoltan-hajnal.html>, a professor of political science at the UC San Diego School of Global Policy and Strategy. “This analysis provides more precise evidence that strict voter ID laws appear to discriminate.”
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Posted in voter id<https://electionlawblog.org/?cat=9>

Supreme Court, Without Noted Dissent, Won’t Revive District Court Order Blocked by 6th Circuit Allowing Ohio Petition Circulators to Collect Electronic Signatures<https://electionlawblog.org/?p=112562>
Posted on June 25, 2020 11:01 am<https://electionlawblog.org/?p=112562> by Rick Hasen<https://electionlawblog.org/?author=3>
[cid:image002.jpg at 01D64B36.86290240]<https://twitter.com/srl>
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Sam Levine<https://twitter.com/srl>
✔@srl<https://twitter.com/srl>

<https://twitter.com/srl/status/1276208579872202752>

SCOTUS won't block lower court ruling that stopped petition gatherers in Ohio from collecting electronic signatures to put measures on the ballot this year
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10:40 AM - Jun 25, 2020<https://twitter.com/srl/status/1276208579872202752>
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Posted in direct democracy<https://electionlawblog.org/?cat=62>, Supreme Court<https://electionlawblog.org/?cat=29>

Empirical Studies on Voter ID Laws<https://electionlawblog.org/?p=112560>
Posted on June 25, 2020 9:38 am<https://electionlawblog.org/?p=112560> by Richard Pildes<https://electionlawblog.org/?author=7>

There’s a new empirical paper<https://privpapers.ssrn.com/sol3/papers.cfm?abstract_id=3607351&dgcid=ejournal_htmlemail_u.s.:constitutional:law:rights:liberties:ejournal_abstractlink> out from a strong group of authors on what turnout effects Virginia’s voter ID law might have had. In this abstract, I highlight the surprising findings:

One contentious question in contemporary election administration is the impact of voter identification requirements. We study a Virginia law that allows us to isolate the impact of requiring voters to show photo identification. Using novel, precinct‐level data, we find that the percentage of registered voters without a driver’s license and over age 85 are both positively associated with the number of provisional ballots cast due to a lack of a photo ID. To examine the law’s impact on turnout, we associate precinct‐level demographics with the change in turnout between the 2013 gubernatorial and 2014 midterm elections. All else equal, turnout was higher in places where more active registered voters lacked a driver’s license. This unexpected relationship might be explained by a targeted Department of Elections mailing, suggesting that the initial impact of voter ID laws may hinge on efforts to notify voters likely to be affected.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Josh Douglas on Kentucky: “‘A qualified success.’ Let’s continue what worked in Tuesday’s primary and fix what didn’t”<https://electionlawblog.org/?p=112558>
Posted on June 25, 2020 8:50 am<https://electionlawblog.org/?p=112558> by Rick Hasen<https://electionlawblog.org/?author=3>

Lexington Herald-Leader oped<https://www.kentucky.com/opinion/op-ed/article243786922.html>.
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Posted in election administration<https://electionlawblog.org/?cat=18>

--
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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