[EL] ELB News and Commentary 5/7/20

[Rick Hasen]

“On the Same Day Sen. Richard Burr Dumped Stock, So Did His Brother-in-Law. Then the Market Crashed”<https://electionlawblog.org/?p=111215>
Posted on May 6, 2020 8:53 pm<https://electionlawblog.org/?p=111215> by Rick Hasen<https://electionlawblog.org/?author=3>

ProPublica:<https://www.propublica.org/article/burr-family-stock>

Sen. Richard Burr was not the only member of his family to sell off a significant portion of his stock holdings in February, ahead of the market crash spurred by coronavirus fears. On the same day Burr sold, his brother-in-law also dumped tens of thousands of dollars worth of shares. The market fell by more than 30% in the subsequent month.

Burr’s brother-in-law, Gerald Fauth, who has a post on the National Mediation Board, sold<https://www.documentcloud.org/documents/6883317-Gerald-W-Fauth-03-23-2020-278T.html> between $97,000 and $280,000 worth of shares in six companies — including several that have been hit particularly hard in the market swoon and economic downturn.

A person who picked up Fauth’s phone on Wednesday hung up when asked if Fauth and Burr had discussed the sales in advance.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Colorado GOP Chair Ken Buck pressured local official to submit incorrect election results; Fellow Republican says congressman tried to bully him into committing a crime”<https://electionlawblog.org/?p=111213>
Posted on May 6, 2020 8:41 pm<https://electionlawblog.org/?p=111213> by Rick Hasen<https://electionlawblog.org/?author=3>

Quite a story<https://www.denverpost.com/2020/05/06/colorado-ken-buck-gop-primary/> in the Denver Post.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, political parties<https://electionlawblog.org/?cat=25>


“James Madison, Citizens United, and the Constitutional Problem of Corruption”<https://electionlawblog.org/?p=111211>
Posted on May 6, 2020 4:08 pm<https://electionlawblog.org/?p=111211> by Rick Hasen<https://electionlawblog.org/?author=3>

Tony Gaughan has posted this draft <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3584394> on SSRN (American U. L. Rev.). Here is the abstract:

One of the most controversial decisions in the modern history of the Supreme Court is Citizens United v. Federal Election Commission. In a 5-4 ruling, the Supreme Court struck down the ban on corporate independent expenditures. The majority defined corruption in narrow terms and held that quid pro quo corruption was the only constitutionally permissible basis for campaign finance regulation.

The decision set off a storm of outrage. President Obama even took the remarkable step of condemning the ruling during his State of the Union Address. Recent polls show that the public still overwhelmingly opposes the majority’s ruling in Citizens United.

On the tenth anniversary of Citizens United, this Article puts the constitutional problem of corruption in historical context by examining the political career of James Madison. The Citizens United case turned on the First Amendment’s freedom of speech clause. Madison wrote the First Amendment while he served in Congress. He also played a key role in drafting the Constitution and in authoring the Federalist Papers, which explained and defended the Constitution during the ratification debates.

Nearly two centuries after his death, Madison looms as large as ever in American constitutional law. The Supreme Court still consults his writings and career for guidance in interpreting the Constitution. Madison’s appeal even transcends traditional divides, as justices across the ideological spectrum routinely cite him.

The story of Madison’s political career thus brings a unique and important perspective to the Citizens United ruling. The underlying issues of free speech—as well as the threat of corruption posed by powerful financial interests—were well-known to Madison. One of the most important constitutional theorists in history, he was also a career politician, serving as a four-term member of Congress and later as a two-term President of the United States. In addition, he helped Thomas Jefferson found the Democratic-Republican Party (known today as the Democratic Party), which meant that Madison spent his life not only as a public intellectual but also as a practical politician engaged in party building. Madison’s political experiences thus provide a revealing glimpse into how the First Amendment’s author approached the issue of money in politics when it came to his own election campaigns.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, Supreme Court<https://electionlawblog.org/?cat=29>


“Ann McBride, former Common Cause President, Passes Away at 75”<https://electionlawblog.org/?p=111209>
Posted on May 6, 2020 4:04 pm<https://electionlawblog.org/?p=111209> by Rick Hasen<https://electionlawblog.org/?author=3>

Sad news.<https://www.commoncause.org/press-release/ann-mcbride-former-common-cause-president-passes-away-at-77/>
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Posted in election law biz<https://electionlawblog.org/?cat=51>


Lessig on the Faithless Electors Case: “What Rick Hasen is Missing”<https://electionlawblog.org/?p=111207>
Posted on May 6, 2020 1:22 pm<https://electionlawblog.org/?p=111207> by Rick Hasen<https://electionlawblog.org/?author=3>

Larry<https://medium.com/@lessig/what-rick-hasen-is-missing-a9c07d2582d2> at Medium:

It is so rare to be able to write such a headline. But when it is true, given the rightful importance that the Dean of Election Law’s opinion has to so many, it is an important headline to write.

Rick Hasen has worried about the lawsuit<https://slate.com/news-and-politics/2019/09/electoral-college-supreme-court-lessig-faithless-electors.html> that I’ve helped shepherd, which will give the Supreme Court the chance to decide whether presidential electors retain a constitutional discretion when they cast their vote in the Electoral College<https://equalcitizens.us/electors-freedom/>. I was drawn to help press this question after the 2016 election, because I thought regardless of the answer, it is an answer we should secure outside of the context of an actual election. To force the Court to resolve it in the middle of an election would be a disaster for everyone, regardless of the answer.

We were therefore fortunate that the two cases that we brought ended in a conflict, leading the Supreme Court to grant cert. My colleague, Jason Harrow, and I will argue the two cases on May 13, as the last two cases of the term.

Hasen is anxious about, as he puts it, the “high risk that the presidential election results could be thrown into chaos by a handful of rogue electors.” But what’s striking about his analysis is that it is unusually incomplete. Hasen focuses exclusively on the risks on one side of the case — namely, the risks if we win. But he ignores the risks on the other side — namely, the risks if the states succeed in claiming the right to control how electors may vote. Call this the 20th Amendment risk. We’ll return to it below….

So let’s think about how that might play out. Imagine Joe Biden wins in November, by taking every state that Clinton did, plus Michigan, Wisconsin and Pennsylvania. That would give him 279 presumptive votes in the Electoral College. Now imagine — God forbid, not just because it’s not nice to hypothesize about someone’s death, but because, if he is the Democratic nominee, I desperately want him to win — Joe Biden dies after the popular election but before the College votes. Under the laws that Colorado and Washington defend, the electoral votes that would have been for Biden must stay with Biden. Those laws have no death exception (a few other states do, but not them). Thus, 21 electoral votes would be cast for a person who is no more. That would mean that no living candidate would have a majority in the College, thus throwing the election into the House. What happens then is anyone’s guess. The House could do the honorable thing, and vote as the people had voted: for a Democrat. Or the House, assuming Republicans control 26 state delegations as they do now, could vote in a purely partisan way, and re-elect Donald Trump. Either outcome is feasible; both outcomes would create significant political costs.

This is the problem caused by patchwork reform at the state level to a problem that obviously requires a federal solution. I’d be the first to support an amendment that would — like the 20th — give Congress the power to address this third contingency. It seems to me perfectly sensible that the Constitution should give Congress the power to direct electors to vote for the vice presidential candidate, if the presidential candidate were to pass. But if we don’t have that amendment, then the last thing in the world that we need — especially right now — is a series of inconsistent state laws that force a result without any human standing in the middle. Given the integrity of their history, I would much rather rely upon electors in this contingency than to rely upon the unintended consequences of state legislation designed to avoid a problem that has literally never been a problem.
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Posted in electoral college<https://electionlawblog.org/?cat=44>, Supreme Court<https://electionlawblog.org/?cat=29>


“It’s Time To End Election Night In America”<https://electionlawblog.org/?p=111205>
Posted on May 6, 2020 12:51 pm<https://electionlawblog.org/?p=111205> by Rick Hasen<https://electionlawblog.org/?author=3>

Paul Blumenthal<https://www.huffpost.com/entry/election-night-2020-vote-mail_n_5eb1881ac5b6163fb24e0d9b?guccounter=1> for HuffPost:

Election night is supposed to be a night of hyper cable news hosts, color-coded Magic Walls, flickering needles and overwrought homilies to U.S. democracy that ends, maybe in the wee hours, with the American People making a Decision. One person will win and be named the next president of the United States. There will be speeches ― one, a concession, the other, claiming victory. Ratings will be high.

But the 2020 election will be different. Nearly every state in the country anticipates a radical increase in voters casting their ballots by mail to stay safe amid the uncertainty of the coronavirus pandemic. This will fundamentally alter the speed at which votes are tabulated. If this year’s presidential election is as close as five of the last six elections ― 2008 being the exception ― it is unlikely a victor will be declared on Nov. 3.

As a trickle of results come in over the ensuing days or weeks, President Donald Trump and Republican leaders will almost certainly attack the credibility of the elections with false and unfounded allegations of voter fraud. Trump did this in 2016 even after he won the election. And Republican leaders like former House Speaker Paul Ryan (R-Wis.) and House Republican Leader Kevin McCarthy (R-Calif.) both did so after the 2018 midterm elections.

Democratic elections require voters to believe in the legitimacy of the process. False accusations of fraud from one party are designed to undermine the legitimacy of the election of their opponents. But these accusations also strike at the heart of our democratic elections and republican government.

We need to take action to deprive these accusations of oxygen. It’s time to turn down the hype and end election night in America as we know it….

A team of election law, media and technology experts led by University of California, Irvine, professor Rick Hasen, the author of “Election Meltdown,” released a list of recommendations related to this very problem<https://www.law.uci.edu/faculty/full-time/hasen/2020ElectionReport.pdf> last week. Barring a complete delay in reporting vote totals until all ballots are prepared to be counted, as in the case of Wisconsin, the experts recommended that the media prepare viewers and readers for the reality that a winner will not be declared on election night and avoid amplifying any false accusations of fraud from the president or any other politician.

“Journalists should report that vote counts continuing beyond Election Day are normal and that errors and delays are not necessarily indicators of nefarious intent,” the report states.  “Opportunistic elites will seek to take advantage of this confusion, particularly if it can harm the standing of the side that is likely to win. Irresponsible coverage that amplifies such claims runs the risk of encouraging more fundamental challenges to accepting the outcome of the election itself, a compact that is at the heart of democracy.”
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


Ned Foley Recap of OSU Event: Trump v. Biden: How Would It Compare to Bush v. Gore?<https://electionlawblog.org/?p=111203>
Posted on May 6, 2020 12:26 pm<https://electionlawblog.org/?p=111203> by Rick Hasen<https://electionlawblog.org/?author=3>

Ned Foley<https://moritzlaw.osu.edu/faculty/edward-b-foley/> has written this guest post:

         The U.S. Supreme Court already has decided RNC v. DNC<https://www.supremecourt.gov/opinions/19pdf/19a1016_o759.pdf> this year, and it’s only May.  What will Trump v. Biden look like if the November election is close enough to present vote-counting issues worth fighting about.

            That, in essence, was the subject of a conference<https://moritzlaw.osu.edu/election-law/event/expert-roundtable-2020-disputed-election/> held by Ohio State University’s Election Law program on Monday, May 4—a conference conducted by video, of course, given the pandemic.

            The discussion was divided into three 90-minute sessions, each devoted to a distinct time period—with the possibility of a disputed presidential election becoming more problematic as the dispute moved from one time period to the next: (1) from Election Day, November 3, to the vote of the Electoral College, December 14; (2) from the vote of the Electoral College, December 14, to the counting of Electoral College votes in Congress, on January 6; and (3) from January 6 to Inauguration Day, January 20.  For each time period, the discussion was anchored by a series of hypothetical scenarios that conceivably could occur, each of which would raise difficult questions under the Constitution and applicable federal laws.

            While the organizers and participants in the discussion are still contemplating what lessons to draw and what possible next steps to take—all with the goal of putting the nation’s electoral process in a better position to avoid this kind of dispute, or at least handle it successfully if it should occur—three main takeaways began to emerge during the conference, one associated with each of the three time periods that were considered.

From November 3 to December 14: Accept What SCOTUS Decides

         Much of the first 90 minutes was devoted to the possibility that November might involve a repeat of what plagued Wisconsin’s primary in April: thousands of eligible voters properly requesting an absentee ballot but never receiving it in sufficient time to return it by the statutory deadline of the close of the polls on Election Day. The twist in the hypothetical was that the problem this time might happen in Pennsylvania, not Wisconsin, and that the state’s supreme court might deviate from the statutory deadline in order to protect voters from wrongful disenfranchisement.  With the hypothetical assuming that this state court remedy might validate enough ballots in Philadelphia to make Biden the statewide winner, the question was: if the GOP goes to federal court in an attempt to block the state court remedy, which side should win?

            Perhaps most interesting about the discussion was the shared perception that under the relevant federal constitutional principles—involving Article II, as well as the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and including the precedent established in Bush v. Gore itself—it would be difficult, if not impossible, to identify a platonically correct answer to the legal questions that this kind of case would present.  It was thus correspondingly easy to imagine the U.S. Supreme Court justices, when and if the case got to them, dividing over these legal questions, just as they divided 5-4 in the recent RNC v. DNC decision out of Wisconsin.  There was some sentiment among the discussants that, as legal scholars, they should do their best to answer these tricky legal questions ahead of time, before a real dispute might occur over the results of the November 3 vote.  All agreed that attempting to answer such legal questions behind the proverbial “veil of ignorance” was most conducive to generating a genuinely nonpartisan answer, before the scholars themselves become psychologically invested in the outcome of an actually pending dispute.  Even so, the discussants largely agreed that it would be necessary to know more details than the hypothetical scenario had included, and therefore at least at the moment there was too much ignorance behind the veil to make assessment of the relevant legal issues worthwhile.  The applicable doctrine under the Court’s existing jurisprudence was just too fact-dependent.

[Continue reading below the fold]
Continue reading →<https://electionlawblog.org/?p=111203#more-111203>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Plaintiffs Argue for Emergency Relief in Texas Appeals Court Regarding Excuses for Voting Absentee in Light of COVID-19<https://electionlawblog.org/?p=111201>
Posted on May 6, 2020 7:59 am<https://electionlawblog.org/?p=111201> by Rick Hasen<https://electionlawblog.org/?author=3>

You can read the filing here<https://www.scribd.com/document/460171657/Texas-Covid-Appeal>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Josh Douglas on Kentucky: “This state has it right on voting in the age of Covid-19”<https://electionlawblog.org/?p=111199>
Posted on May 6, 2020 7:49 am<https://electionlawblog.org/?p=111199> by Rick Hasen<https://electionlawblog.org/?author=3>

Josh Douglas CNN oped<https://www.cnn.com/2020/05/05/opinions/coronavirus-voting-primaries-kentucky-douglas/index.html>.
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Posted in election administration<https://electionlawblog.org/?cat=18>


C-SPAN’s “Book TV” Will Be Airing Conversation with Ned Foley, Jeff Rosen, and Me About Our Election Books and Voting in the Pandemic Era<https://electionlawblog.org/?p=111197>
Posted on May 6, 2020 7:48 am<https://electionlawblog.org/?p=111197> by Rick Hasen<https://electionlawblog.org/?author=3>

The first airing is May 9 at 8 pm eastern on CSPAN-2; there are other airings and it will eventually be posted on C-SPAN’s website.

Author Discussion on Presidential Elections

Law professors Richard Hasen and Edward Foley offer their thoughts on how to reform the 2020 and future U.S. presidential elections.

PEOPLE IN THIS VIDEO
·         Jeffrey Rosen<https://www.c-span.org/person/?27631>
·         President and CEONational Constitution Center
BOOKS
·          Election Meltdown – Dirty Tricks, Distrust, and the Threat to American Democracy
·         Richard L. Hasen<https://www.c-span.org/person/?1014240>
·         BUY<https://www.c-span.org/video/?471490-1/author-discussion-presidential-elections>
·         Your purchase helps support C-SPAN
·          Presidential Elections and Majority Rule
·         Edward B. Foley
·         BUY<https://www.c-span.org/video/?471490-1/author-discussion-presidential-elections>
·         Your purchase helps support C-SPAN
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


--
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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