[EL] ELB News and Commentary 6/8/21

[Rick Hasen]

“‘Does Anybody Have a Plan?’ Senate Report Details Jan. 6 Security Failures.”<https://electionlawblog.org/?p=122533>
Posted on June 8, 2021 7:01 am<https://electionlawblog.org/?p=122533> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/06/08/us/capitol-riot-security.html?action=click&module=Spotlight&pgtype=Homepage>

Top federal intelligence agencies failed to adequately warn law enforcement officials before the Jan. 6 riot that pro-Trump extremists were threatening violence, including plans to “storm the Capitol,” infiltrate its tunnel system and “bring guns,” according to a new report by two Senate committees that outlines large-scale failures that contributed to the deadly assault.

An F.B.I. memo on Jan. 5 warning of people traveling to Washington for “war” at the Capitol never made its way to top law enforcement officials. The Capitol Police failed to widely circulate information from its intelligence unit that supporters of President Donald J. Trump were posting online about pressuring lawmakers to overturn his election loss.

“If they don’t show up, we enter the Capitol as the Third Continental Congress and certify the Trump Electors,” one post said.

“Bring guns. It’s now or never,” said another.

The first congressional report on the Capitol riot<https://www.rules.senate.gov/news/press-releases/peters-portman-klobuchar-blunt-release-bipartisan-report-investigating-january-6th-capitol-attack> is the most comprehensive and detailed account to date of the dozens of intelligence failures, miscommunications and security lapses that led to what the bipartisan team of senators that assembled it concluded was an “unprecedented attack” on American democracy and the most significant assault on the Capitol in more than 200 years.

“The failure to adequately assess the threat of violence on that day contributed significantly to the breach of the Capitol,” said Senator Gary Peters, Democrat of Michigan and the chairman of the Homeland Security and Governmental Affairs Committee. “The attack was quite frankly planned in plain sight.”

The 127-page joint report, a product of more than three months of hearings and interviews and reviews of thousands of pages of documents, presents a damning portrait of the preparations and response at multiple levels. Law enforcement officials did not take seriously threats of violence, it found, and a dysfunctional police force at the Capitol lacked the capacity to respond effectively when those threats materialized.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Democrats’ Improbable New F.E.C. Strategy: More Deadlock Than Ever”<https://electionlawblog.org/?p=122531>
Posted on June 8, 2021 7:00 am<https://electionlawblog.org/?p=122531> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/06/08/us/politics/fec-democrats-republicans.html>

For more than a decade, Democrats seeking more robust enforcement of election laws and transparency measures have been routinely routed at the F.E.C., the nation’s top campaign watchdog agency. They have complained bitterly that Republicans have weaponized the commission’s bipartisan structure — there are three commissioners allied with both parties — to turn it into a toothless, do-nothing bureau.

Now, the Democratic commissioners have stealthily begun to strike back by leveraging some of the same arcane rules that have stymied enforcement efforts for years — namely, that a bipartisan vote is necessary to do almost anything — to make the agency do even less. The goal appears to be to take a commission widely seen as dysfunctional and create further deadlock, compelling federal courts to fill the breach when it comes to policing federal election law.

“I think of it as a desperate cry for help,” said Adav Noti, a former lawyer at the F.E.C. who is now a senior director at the Campaign Legal Center, a nonpartisan watchdog group that is among those that have sued the F.E.C.

If successful, the gambit could have far-reaching implications for future campaigns and for pending F.E.C. complaints from the 2020 election, like one that accused former President Donald J. Trump’s campaign<https://campaignlegal.org/sites/default/files/2020-07/07-27-20%20Trump%20AMMC%20%28final%29.pdf> of laundering hundreds of millions of dollars through limited liability companies to conceal whom his campaign was ultimately paying.

The chief architect behind the strategy is Ellen L. Weintraub, a Democratic F.E.C. commissioner since 2002, who described it as something of a last-ditch effort after years of watching enforcement actions become sidelined in 3-3 split decisions. “I’m using the small amount of leverage that I have,” she said. “It’s not a lot.”

Here is what has been happening behind closed doors, according to people familiar with the commission’s private executive sessions: First, the Democrats are declining to formally close some cases after the Republicans vote against enforcement. That leaves investigations officially sealed in secrecy and legal limbo. Then the Democrats are blocking the F.E.C. from defending itself in court when advocates sue the commission for failing to do its job….

The combination of moves takes advantage of existing provisions in campaign law to essentially open the door for outside advocacy groups to directly sue campaigns in federal court. In fact, it is already happening, including in one case involving a group that spent money supporting Senator Joni Ernst of Iowa and that is accused of improperly existing as a nonprofit to shield its donors from public disclosure.

“If I don’t believe the case ought to be dismissed, why would I vote to dismiss?” Ms. Weintraub said of leaving cases pending. “I’m just trying to get the law enforced.”

The Republican commissioners are livid. Commissioner Sean J. Cooksey has warned his Democratic colleagues that they are going down “a very, very dark road” and revealed in a recent memo that there are now 13 such unclosed cases, calling them “zombie matters — dead but unable to be laid to rest.” Commissioner Trey Trainor said in an interview that the Democrats were “poisoning the well” at the agency with a tactic that he said was “an abuse of the process.”

“They are on the losing end of the 3-3 votes, and they think that by concealing the information from the courts, they’ll get a different ruling,” Mr. Trainor said.

Ms. Weintraub said: “I didn’t bust the norms of the agency. The other side did.”
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Posted in federal election commission<https://electionlawblog.org/?cat=24>


“Texas Democrats Begin Voter Registration Push as G.O.P. Eyes Limits”<https://electionlawblog.org/?p=122529>
Posted on June 8, 2021 6:56 am<https://electionlawblog.org/?p=122529> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2021/06/08/us/politics/texas-voter-registration-democrats.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“After Manchin move, Democrats’ voting long shot grows longer”<https://electionlawblog.org/?p=122527>
Posted on June 8, 2021 6:54 am<https://electionlawblog.org/?p=122527> by Rick Hasen<https://electionlawblog.org/?author=3>

AP reports.<https://apnews.com/article/donald-trump-voting-rights-voting-government-and-politics-365b422b2155aa21755d742cd801317c>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“John Lewis voting rights bill faces steep uphill climb in Senate”<https://electionlawblog.org/?p=122525>
Posted on June 8, 2021 6:51 am<https://electionlawblog.org/?p=122525> by Rick Hasen<https://electionlawblog.org/?author=3>

NBC News reports.<https://www.nbcnews.com/politics/congress/john-lewis-voting-rights-bill-faces-steep-uphill-climb-senate-n1269910>
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>


“Democrats May Need To Change Their Voting Rights Bill If They Want It To Pass”<https://electionlawblog.org/?p=122523>
Posted on June 8, 2021 6:50 am<https://electionlawblog.org/?p=122523> by Rick Hasen<https://electionlawblog.org/?author=3>

HuffPost reports.<https://www.huffpost.com/entry/joe-manchin-voting-rights-s1_n_60bea742e4b0427b3fda6fbe>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Election Law Academics Update<https://electionlawblog.org/?p=122521>
Posted on June 8, 2021 6:49 am<https://electionlawblog.org/?p=122521> by Rick Hasen<https://electionlawblog.org/?author=3>

Here’s my yearly roundup of election law academic hires, promotions moves, visits, accolades:

Guy Charles<https://today.law.harvard.edu/constitutional-scholar-guy-uriel-charles-a-leading-expert-on-race-politics-and-election-law-to-join-hls/> will join the Harvard Law faculty as the inaugural Charles J. Ogletree, Jr. Professor of Law, effective July 1. He will also serve as faculty director of HLS’s Charles Hamilton Houston Institute for Race and Justice<https://charleshamiltonhouston.org/>.

Guy Charles, Heather Gerken<https://law.yale.edu/heather-gerken>, Michael Kang<https://www.law.northwestern.edu/faculty/profiles/MichaelSeokhyunKang/>, Rick Pildes<https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.overview&personid=20200>, and Bertrall Ross were named to President Biden’s Commission<https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/09/president-biden-to-sign-executive-order-creating-the-presidential-commission-on-the-supreme-court-of-the-united-states/> on the Supreme Court (headed by Bob Bauer<https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.overview&personid=36322> and Cristina Rodriguez<https://law.yale.edu/cristina-rodriguez>)

Josh Douglas<https://law.uky.edu/news/joshua-a-douglas-named-ashland-inc-spears-distinguished-research-professor-law> was named the Ashland, Inc.-Spears Distinguished Research Professor of Law, which is one of UK Law’s most distinguished professorships.

Chris Elmendorf<https://law.ucdavis.edu/faculty/elmendorf/> was elected to the American Law Institute.

Ruth Greenwood<https://www.hlselectionlaw.org/team> was named Director of Harvard’s new election law clinic.

David Lublin<https://www.american.edu/spa/faculty/dlublin.cfm> is completing my first year as chair of the Department of Government at American University after starting last July. He also was elected to a three-yearn term as Treasurer of the American Political Science Association.

At the Rose Institute of State and Local Government at Claremont McKenna College, Associate Director Kenneth Miller<https://roseinstitute.org/staff/> is moving up from Associate Director to Director, as Director Andrew Busch rotates on the College’s usual Institute Director rotation schedule.

Michael Morley<https://law.fsu.edu/faculty-staff/michael-morley> received tenure and was promoted to Associate Professor at FSU College of Law.

Derek Muller<https://law.uiowa.edu/people/derek-t-muller> has been named the Bouma Faculty Fellow in Law at the University of Iowa College of Law (effective July 1).

Teddy Rave<https://law.uh.edu/faculty/main.asp?PID=4950> moved to University of Texas.

Bertrall Ross<https://www.law.virginia.edu/faculty/profile/syr7hw/2917537> moved to Virginia Law School.

Chris Seaman<https://law.wlu.edu/faculty/full-time-faculty/chris-seaman> has been promoted to full professor (effective July 1) at Washington and Lee.

Doug Spence<https://lawweb.colorado.edu/profiles/profile.jsp?id=1002>r will join the University of Colorado law faculty as of Aug 2021.

Nick Stephanopoulos<https://hls.harvard.edu/faculty/directory/11787/Stephanopoulos> was named the Kirkland & Ellis Professor at Harvard (effective July 1).

Ciara Torres-Spelliscy<https://www.stetson.edu/law/faculty/torres-spelliscy-ciara/> will be visiting at American University in 2022.

Abby Wood<https://gould.usc.edu/faculty/?id=71046> was promoted to Professor of Law, Political Science, and Public Policy at the USC Gould School of Law.  She was also appointed to the Fair Political Practices Commission<https://www.sos.ca.gov/administration/news-releases-and-advisories/2021-news-releases-and-advisories/sw21005> of California, where she already served as a member of the Digital Transparency Task Force<https://www.fppc.ca.gov/about-fppc/hearings-meetings-workshops/digital-transparency-task-force.html>.

Congratulations all!
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Posted in election law biz<https://electionlawblog.org/?cat=51>


Biden Press Secretary Gets Question About Federal Legislation to Counter Election Subversion; Punts on Whether Biden Supports Changes to the Electoral Count Act<https://electionlawblog.org/?p=122519>
Posted on June 7, 2021 3:40 pm<https://electionlawblog.org/?p=122519> by Rick Hasen<https://electionlawblog.org/?author=3>

Watch here:<https://twitter.com/AndrewFeinberg/status/1401960114706432009>

Even before the events of January 6, I wrote<https://www.theatlantic.com/ideas/archive/2021/01/we-cant-let-our-elections-be-vulnerable-again/617542/> (in the Atlantic) about how reforming the Electoral Count Act is desperately needed.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


Watch Archived Video: “The New Danger in Voting Legislation”<https://electionlawblog.org/?p=122517>
Posted on June 7, 2021 12:04 pm<https://electionlawblog.org/?p=122517> by Rick Hasen<https://electionlawblog.org/?author=3>

Video now posted<https://www.youtube.com/watch?v=eioFegQyq8s> from the Humphrey School at the University of Minnesota:

Georgia, Texas, and other states are pursuing legislation that will make it more difficult to vote, especially for voters of color. Less attention has been paid to a second threat: giving the legislature a greater hand in who counts votes and how they are counted. Will this reform improve or damage the integrity of elections and the confidence of voters in their results? An impressive panel joins us: Richard L. Hasen, Chancellor’s Professor of Law and Political Science, University of California, Irvine Michael T. Morley, Associate Professor, Florida State University College of Law Moderated by Tammy Patrick, Senior Advisor, Elections Program, Democracy Fund
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Rejecting Biden’s Win, Rising Republicans Attack Legitimacy of Elections”<https://electionlawblog.org/?p=122515>
Posted on June 7, 2021 11:22 am<https://electionlawblog.org/?p=122515> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/06/07/us/politics/republican-election-fraud-claims.html?action=click&module=Top%20Stories&pgtype=Homepage>

Dozens of Republican candidates have sown doubts about the election as they seek to join the ranks of the 147 Republicans in Congress<https://www.nytimes.com/interactive/2021/01/07/us/elections/electoral-college-biden-objectors.html> who voted against certifying President Biden’s victory. There are degrees of denial: Some bluntly declare they must repair a rigged system that produced a flawed result, while others speak in the language of “election integrity,” promoting Republican re-examinations of the vote counts in Arizona<https://www.nytimes.com/2021/04/25/us/Election-audit-Arizona-Republicans.html> and Georgia<https://www.nytimes.com/2021/05/24/us/politics/georgia-election-recount.html> and backing new voting restrictions introduced by Republicans in battleground states.

They are united by a near-universal reluctance to state outright that Mr. Biden is the legitimately elected leader of the country.

“I would not have voted to certify Jan. 6, not without more questions,” said Sam Peters, a Nevada Republican who is campaigning for a Las Vegas-area House seat. He said he was not sure that Mr. Biden had legitimately won Nevada, even though the president did so by more than 33,000 votes<https://www.nytimes.com/interactive/2020/11/03/us/elections/results-nevada.html>.

It’s unclear how long the reluctance to accept unfavorable electoral outcomes will remain a central focus of the party, and to what degree Republicans might support widespread election challenges up and down the ballot in the future.

But Republicans’ unwavering fealty to the voter fraud myth underscores an emerging dynamic of party politics: To build a campaign in the modern G.O.P., most candidates must embrace — or at least not openly deny — conspiracy theories and election lies, and they must commit to a mission of imposing greater voting restrictions and making it easier to challenge or even overturn an election’s results. The prevalence of such candidates in the nascent stages of the party primaries highlights how Mr. Trump’s willingness to embrace far-flung falsehoods has elevated fringe ideas to the mainstream of his party.

Over a year before the midterm elections, many of the fledgling primary races remain in flux, with scores of potential candidates still weighing bids. The Census Bureau’s delays in producing detailed population data have pushed the redistricting process back<https://www.nytimes.com/2021/01/31/us/politics/gerrymander-census-democrats-republicans.html> until at least September, which has impeded the recruitment of candidates for both parties.

The result is that Republicans who have jumped into campaigns early tend to be those most loyal to Mr. Trump and the party base. Several among this new class of Republicans are likely to win their races, helped by historical trends favoring the party out of the White House, and a head start on fund-raising and meeting potential voters.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Gov. J.B. Pritzker signs into law new maps for Illinois legislature, state Supreme Court”<https://electionlawblog.org/?p=122510>
Posted on June 7, 2021 9:48 am<https://electionlawblog.org/?p=122510> by Richard Pildes<https://electionlawblog.org/?author=7>

From the Chicago Tribu<https://www.chicagotribune.com/politics/ct-pritzker-signs-illinois-legislative-redistricting-maps-20210604-hyohgbgxgjbnddheirxuhx7u5m-story.html>ne:

Democratic Gov. J.B. Pritzker, who as a candidate vowed to veto any partisan redistricting plan for the legislature, signed into law Friday new partisan-drawn districts for the General Assembly and state Supreme Court designed to maintain his party’s control in Illinois.
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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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