WI: “What game is Schimel playing?”

Milwaukee Journal-Sentinel editorial page blog:

Just what game is Republican state Attorney General Brad Schimel playing?
His office released a memo Monday saying an investigation into allegations of voter fraud by Democrats talking on a video about bringing in people from out of state was over and that no voter fraud was found. The videos were taken by Project Veritas Action, a group run by conservative activist James O’Keefe.

 The finding, issued in January, came out after months of delay, thanks only to a Journal Sentinel open records request. Schimel had said last October (conveniently just before the election) that it sure looked like violations may have occurred.
Schimel repeated on Wisconsin Public Radio that the investigation was closed. But a few hours later, Schimel told conservative talk radio host Mark Belling that no, no, no, the investigation is still open. He said he planned to examine additional videos that Veritas had sent to his office.
 O’Keefe was not happy about the memo, by the way. On Thursday, he released a short video telling Schimel, “We should investigate you and you should lose your job.”

Schimel’s spokesman Johnny Koremenos on Friday said the memo had been released in error. He declined to answer other questions.


“Surge in LLC contributions brings more mystery about true donors”

Open Secrets:

Donald Trump’s inaugural committee did well by almost any standard: Doubling the previous record for cash raised to fund festivities around a new president’s swearing-in, it took in contributions from every major sector of the economy, and from donors who had steered clear of his campaign prior to the election.

The committee also received about $10.6 million — or about 10 percent of its total raised — from roughly 60 limited liability companies, or LLCs — structures often set up by small businesses that provide favorable tax treatment while also protecting their owners’ assets.

But some exist mainly to mask people’s identities.


“Voting Rights on Trial on the Bayou”

The Atlantic:

In the half-century since the parish moved to an at-large system, only one black judge, Juan Pickett, has ever been elected to the 32nd District Court. That he ran unopposed has been taken by state officials as proof of a black candidate’s ability to win elections. Yet, the previous judge in that seat, Timothy Ellender, stepped down after years of incidents: He wore blackface and prison shackles to a Halloween party—the state Supreme Court sent him afterward to racial-sensitivity training—and engaged in behavior so bizarre as to constitute a sustained legal miscarriage of justice. Pickett’s success, then, really seems to highlight the almost absurd sequence of events that had to take place for just one black victory.

To be sure, Louisiana state officials characterize the NAACP lawsuit, which LDF lawyers are arguing in court this week, as a weak case at best. They cite that the black minority is neither large nor compact enough to constitute an aggrieved voting block as described in VRA requirements. But the NAACP and LDF argue that their objections are undermined by the timing of the at-large shift, as well as the fact that other parish-wide voter schemes passed at the same time—like a 1969 bond vote restricted to property owners—have been considered unconstitutional by the nation’s highest courts. According to testimony in the Terrebonne Parish Branch NAACP, et al. v. Edwards, et al. trial this week from historian Allan J. Lichtman, black Terrebonne Parish residents also successfully sued to stop at-large school-district elections in the 1970s. He said the DOJ has since found that coherent black districts can be made in the parish, despite the state rejecting attempts to do so. If that’s validated by the court on Friday, it could trigger an at-large voting ban.

The implications for this case go beyond the judicial ramifications of having a representative elected court. The fact of the matter is that in the South, white voters simply don’t vote for candidates favored by black voters, and in places witha majority of white voters, like Terrebonne Parish, perhaps the easiest way to lose an election is to be endorsed by black voters. This sort of “racially polarized voting” is one of the core triggers and purposes of the VRA, and it’s getting worse 52 years out from its passage, not better. While it seems a minor brushfire over a district court, the decision in the NAACP lawsuit is yet another test of the ability of the courts to enforce the spirit of the VRA.


“Va. Gov. McAuliffe says he has broken U.S. record for restoring voting rights”


Gov. Terry McAuliffe announced Thursday that he had broken the record for restoring voting rights to convicted felons, calling it his “proudest achievement” as governor.

McAuliffe (D) said he had individually restored rights to 156,221 Virginians, surpassing the previous record-holder by a nose. As governor of Florida from 2007 to 2011, Charlie Crist restored voting rights to 155,315 felons, according to figures that McAuliffe’s office obtained from Florida.


“Ahead of 2018, trial likely looms in Texas political map battle”

Texas Tribune:

As the 2018 election cycle nears, it appears Texas and its legal foes are headed for a trial — yet again — over what the state’s House and congressional boundaries will look like, and it will likely come this summer.

“I think the trial is certain,” said Jose Garza, an attorney for the Mexican American Legislative Caucus, a lead plaintiff in the years-long challenge of the state’s political boundaries. “At the end of the day, we’re going to get new political maps, and the court’s going to draw them.”

His comments followed a lengthy and complicated hearing Thursday over the fate of the state’s 2013 House and congressional maps — a high-profile status conference that followed a pair of federal rulings that Texas lawmakers intentionally discriminated against minority voters in initially drawing each map in 2011.

Judge Orlando Garcia, one of the three judges presiding over the case here, said the panel would issue an order Monday “covering several matters that have been raised today.”


“Judge says ex-Congressman Bob Beauprez’s group must pay $17,000 in campaign finance fines”

Colorado Independent:

Former Republican U.S. Rep. Bob Beauprez, who ran for governor in 2014, should have registered a nonprofit as a political committee, a judge ruled.

The decision came in response to a dark-money lawsuit filed by Matt Arnold, a non-attorney who prosecuted the case before an administrative law judge last month, arguing that Beauprez had run a political committee masked as a tax-exempt 501(c)(4) “social welfare” nonprofit.


“Schock wants campaign finance charges dropped”

The Hill:

Former Rep. Aaron Schock (R-Ill.), who has been indicted on two-dozen fraud-related charges, wants a federal court to dismiss five counts on the falsifying of campaign finance records.

His lawyers at McGuireWoods argue that the charges infringe on his constitutional rights, including rights to due process, by using an anti-obstruction law to prosecute him for the alleged falsification of campaign expenses.

As a candidate and member of Congress, Schock “caused less than two handfuls of false entries to be made among hundreds in the records of certain political committees and among the scores of the disclosure reports that those committees filed with the [Federal Election Commission] in the ordinary course of business,” his lawyers wrote in a court filing late last week.


“Should ‘Dark’ Money Power the Resistance to Trump?”

Eliza Newlin Carney for TAP:

Watchdogs have faulted the IRS for failing to put the brakes on political spending by tax-exempt groups, which operate outside the disclosure rules. Technically, 501(c)(4) social welfare groups may not focus on politics as their primary purpose. But campaign-style spending by nonprofits not required to identify their donors has exploded since the Supreme Court’s 2010 Citizens United v. FEC ruling to lift limits on political spending by unions and corporations, including incorporated nonprofits.

Until recently, this has been largely a Republican game. Conservative tax-exempt groups spent 59.7 percent of the undisclosed campaign money in the 2016 election, CRP data show, compared with 38.9 percent spent by liberal groups.

But Democrats, not willing to play by different rules, are catching up, and the trend could cause headaches for progressives. Party leaders have made attacks on undisclosed “dark” money a leading talking point. If Senators up for reelection get help from progressive groups operating in secrecy, it potentially undercuts Democrats’ campaign finance message. The IRS, moreover, has issued a string of rulings recently that revoke or deny tax-exempt status to groups that the agency said strayed too far into politics, which does not qualify as a social welfare or charitable activity.
My take: this is equally troubling whether done by the left or right if the groups are seriously engaged in electoral activities.

“The Chosen One: Thoughts on a Better, Fairer, and Smarter Way to Choose Presidential Nominees”

Brennan Center:

Although the 2016 presidential primaries garnered profound dissatisfaction with the nomination process, leading to widespread accusations of unfairness within both parties, most voters will forget our current system’s issues until the 2020 election. But in a new paper, Brennan Center fellow, Roll Call columnist, and Yale lecturer in political science Walter Shapiro argues that 2020 will be far too late to rethink the nomination process – and there are a series of practical and effective reforms that could be put in place now to create a more representative system that limits the chances of unpopular or controversial candidates.

Download the Report


“Klobuchar & Hirono Probe Thapar on Money in Politics”


One of the several concerns that have been raised about Sixth Circuit nominee Amul Thapar centers on a case in which he used a severely flawed First Amendment analysis to strike down Kentucky’s ban on state judicial candidates contributing money to political organizations or candidates. In Winter v. Wolnitzek, Thapar applied strict scrutiny (the highest possible standard) to the prohibition, even though the Supreme Court has stated repeatedly that restrictions on campaign contributions are subject to a lesser level of scrutiny. (His opinion was reversed by a unanimous three-judge circuit panel.)


Drain the Swamp Dep’t: “Spending on lobbying approached $1 billion in first quarter, highest in 5 years”


Industries from around the world spent nearly $1 billion to lobby the federal government during the first quarter of this year, according to a new analysis by the Center for Responsive Politics — the highest in five years.

The uptick was driven by both optimism and fear over the priorities of President Trump and the Republican Congress, lobbying experts said. However, nervous drugmakers logged their biggest increase in spending amid signs that the new president may try to drive down drug prices.


“Redistricting by Formula: An Ohio Reform Experiment”

Micah Altman and Michael McDonald in American Politics Research:

In the last decade, Ohio reformers advocated redistricting by formula: selecting the redistricting plan that scores best on a predefined objective scoring function that combines prima facie neutral criteria with political goals of plan fairness and district competition. In the post-2010 redistricting, these reformers hosted a public competition where prizes were awarded to the best legal plan scored on the reformers’ formula. The submitted plans provide a unique opportunity to evaluate how redistricting by formula may work in practice. Our analysis finds the public yields a broader range of redistricting plans, on indicia of legal and public policy interest, than developed by the state legislature. The Pareto frontier reveals plans that perform better than the legislature’s adopted plan on one and two dimensions, as well as the reformers’ overall scoring function. Our evaluation reveals minimal trade-offs among the components of the overall competition’s scoring criteria, but we caution that the scoring formula may be sensitive to implementation choices among its components. Compared with the legislature’s plan, the reform community can get more of the four criteria they value; importantly, without sacrificing the state’s only African American opportunity congressional district.


“The Complicated Partisan Effects of State Election Laws”

Burden, Canon, Mayer, and Moynihan in Political Research Quarterly:

Conventional political wisdom holds that policies that make voting easier will increase turnout and ultimately benefit Democratic candidates. We challenge this assumption, questioning the ability of party strategists to predict which changes to election law will advantage them. Drawing on previous research, we theorize that voting laws affect who votes in diverse ways depending on the specific ways that they reduce the costs of participating. We assemble datasets of county-level vote returns in the 2004, 2008, and 2012 presidential elections and model these outcomes as a function of early voting and registration laws, using both cross-sectional regression and difference-in-difference models. Unlike Election Day registration, and contrary to conventional wisdom, the results show that early voting generally helps Republicans. We conclude with implications for partisan manipulation of election laws.


Millions Spent on Soda Tax Fight in Santa Fe, NM

Albuquerque Journal:

Former New York City Mayor Michael Bloomberg has made a $400,000 cash donation to the political committee supporting the proposed tax on sugary beverages in Santa Fe, bringing his investment in the effort to more than $1.13 million.

With Bloomberg’s help, the campaign in favor of a 2-cents-per-ounce tax on sugary drinks to fund early childhood education programs so far has outraised opponents of the tax — barely — despite contributions of cash and in-kind services totaling $1.15 million from the American Beverage Association to fight the ballot measure.


Free Speech for People, Prof John Coates File Complaint Against CITGO Contributions to Trump Inaugural Committee

Watchdog group Free Speech For People, joined by Harvard Law Professor John Coates,  just filed an FEC complaint against Citgo and the Trump inaugural committee alleging that federal law prohibits “foreign nationals” from donating to presidential inaugural committees.

Read the complaint.


“This voting reform solves 2 of America’s biggest political problems”

Lee Drutman at Vox:

Whatever the causes of polarization, there is a relatively straightforward solution to our current predicament that has been embraced by most advanced industrial democracies: proportional representation. There are many versions of this approach, but they all involve some way of electing multiple people, at once, to represent a region. In a proportional system, parties representing as little as 1 percent of the electorate can gain representation, though the most stable systems usually have a threshold percentage level to prevent truly marginal parties from gaining seats. The regions can be as large as an entire nation — but even when they are smaller they tend to be larger than the 435 tiny US congressional districts, each of which is run according to the “winner take all” principle.

Under a proportional system, if you want to live in a big, liberal city in a liberal state, you don’t give up the chance to make a difference with your vote. There is also very little possibility for consequential gerrymandering in proportional representation systems, since districts tend to be so big that there’s not much to gain from alternative line-drawings.

Perhaps most significantly, proportional representation makes third parties more viable. In the US system, many voters might prefer a third party, in theory, but in a winner-take-all scenario a vote for a third party is a wasted vote, since only the two major parties stand a chance of winning. As a result, most proportional systems have at least three major parties, often more. This produces a wider diversity of perspectives in the representative body, and more potential for bargaining across different issues.

Michael McDonald: “Why are White men at promoting an idea that courts have found will diminish minority representation?”


“NC Republicans override gov’s veto in latest partisan clash”


Republican lawmakers have voted to override new Democratic Gov. Roy Cooper’s veto of a bill that reduces his authority over state elections, the latest partisan clash in North Carolina over laws that chip away at executive branch power.

The House completed the override Tuesday, a day after the Senate cast a similar vote that exceeded the three-fifths majorities required to enact the law despite Cooper’s objections. The governor has threatened a legal challenge over the law, which takes effect early next week.

“Time and again their attempts to rig elections have been found unconstitutional. This bill simply repackages similar legislation that has already been struck down by the court,” Cooper spokesman Ford Porter said in a release, adding the governor “will continue to protect the right to vote and fight for fair elections.”

But legislative leaders rushed to courthouses within minutes of the override to ask judges to declare the new law satisfied their previous concerns about a similar elections law approved just before Cooper took office and that a three-judge panel overturned last month.


“Wisconsin DOJ: James O’Keefe’s Project Veritas tape did not show election law violations”

Milwaukee Journal Sentinel:

Covert videos of Democratic activists released in the run-up to last year’s presidential election showed no violations of Wisconsin laws, a review by the attorney general’s office found.

The blunt conclusion is at odds with how Republican Attorney General Brad Schimel initially reacted to the videos by conservative provocateur James O’Keefe, who has a track record of mischaracterizing his recordings and was found guilty of a misdemeanor in 2010 over one of his operations. …

The videos concentrated on Wisconsin liberal activist Scott Foval, who bragged on tape about disrupting Republican events and discussed busing people into Wisconsin from other states.


Howard Law Seeking a Visitor for AY 2017-2018

The Howard University School of Law invites applications for a visiting professor position for AY 2017-2018. The visitor should be able to teach some of the following courses: environmental law, administrative law, property, and legislation. Candidates should have a juris doctorate and teaching experience. Interested persons should send a CV and subject area preferences to Associate Dean Lisa Crooms-Robinson (lcrooms@law.howard.edu) or Prof. Josephine Ross, Initial Appointments Committee, c/o Donnice Butler, 2900 Van Ness Street NW, Washington, DC 20008 or, by email, to jross.howardlaw@gmail.com (electronic submissions preferred).

Howard University School of Law is committed to a diverse faculty, staff, and student body. Applications from women, minorities, persons with disabilities, and others whose background, experience, and viewpoints contribute to the diversity of our institution are encouraged.

Howard University is an Equal Opportunity Employer and does not discriminate on the base of race, color, religion, sex, national origin, age, disability, genetics, sexual orientation, gender, or veteran status.


Paul Clement Brief on WI Redistricting Calls Court Policing of Gerrymandering “Dangerously Wrong”


Attorneys for the Republican-controlled Wisconsin Legislature asked the U.S. Supreme Court on Monday to uphold GOP-drawn legislative boundaries, saying a ruling that found them to be unconstitutional was “dangerously” wrong.

The filing comes in support of separate and similar arguments made by Republican Attorney General Brad Schimel in his appeal of a three-judge panel’s ruling last year striking down the maps. The judges ordered new maps to be drawn by November, saying the current ones amounted to unconstitutional partisan gerrymandering favoring Republicans. It was the first ruling of its kind after decades of legal battles over redistricting.

The Legislature argued in its Monday filing that the ruling was “profoundly out of step” with decades of lower court decisions rejecting comparable claims of gerrymandering — the practice of drawing boundaries to favor one political party over another. If the ruling is allowed to stand, the Legislature argued, it “would extinguish any last hope for state autonomy in the redistricting process” and make federal lawsuits unavoidable.


“Analysis: A word about where Texas legislators get their legal advice”

Ross Ramsey epic subtweet of TX gov Greg Abbott:

Do you remember the name of the lawyer who advised the Texas House and Senate when they wrote the 2011 voter ID bill? That’s the law a federal judge in Corpus Christi found to be intentionally discriminatory on the basis of race. An appeals court told her to throw out a particular argument without retrying the case and come to a fresh conclusion. She did, and she came to the same conclusion: intentional racial discrimination.

Do you remember the name of the lawyer who advised the House and the Senate — and don’t forget the governor at the time, Rick Perry — on congressional and legislative redistricting after the 2010 census, counseling them as they drew lines to maximize their Republican advantage? The legal expert who would have said “too much” if he had thought his clients might’ve stepped in a legal cow patty? They stepped in it just the same: A federal panel ruledlawmakers intentionally discriminated against minority voters.

The state has stacked up a run of losses that could throw it back under federal supervision — forcing the great state of Texas to tuck tail and ask the federal government for permission for every change it makes to its voting and election laws. This state and many others used to discriminate habitually and creatively — so much so that federal law included Texas in the list of states that couldn’t be trusted to take care of their own citizens with fair laws and fair districts that would have allowed them to take part in the great democratic franchise, to choose the people who represent them.

Remember that lawyer’s name?


“Montgomery election board to review registration practices”


Montgomery election officials said Monday they will review registration procedures in response to allegations from a conservative watchdog group that the county’s rolls are packed with ineligible voters.

Judicial Watch said in a letter earlier this month there was “strong circumstantial evidence” that Montgomery’s lists are filled with names of voters who have died, moved out of state or are non-citizens. It said the charge is supported by data showing more registered voters in the county than there are citizens of voting age (18 and over).

The group said it would sue the state of Maryland within 90 days unless officials show they have taken action to clean up voter lists and come into compliance with the National Voter Registration Act.


“Now we finally know how bad voter fraud is in North Carolina”

Charlotte Observer editorial:

At last, we know how badly photo voter ID is needed in North Carolina.

For years, Republicans in North Carolina have alleged that in-person fraudulent voting is widespread while Democrats have said it is non-existent. But no one knew for sure, leaving the two sides talking past each other on voter ID.

On Friday, the State Board of Elections released the results of an extensive, objective audit of the 2016 election. It found that 4,769,640 votes were cast in November and that one (1) would probably have been avoided with a voter ID law. One out of nearly 4.8 million.


“A scholar asks, ‘Can democracy survive the Internet?’”

Dan Balz for WaPo:

In more innocent times, the rise of the Internet was seen by many people as a boon to democracy. Disruptive, yes, but the Web broadened the flow of information, introduced new voices into the political debates, empowered citizens and even provided a powerful fundraising tool for some lesser-known candidates such as Barack Obama and Bernie Sanders.

Now, in what are clearly less innocent times, the Internet is viewed as a far less benign force. It can be a haven for spreading fake news and rewarding the harshest and most divisive of political rhetoric. It is a medium, for all its benefits, that has dark corners populated by anonymous actors (some not even real people) whose influence appears to be growing but not easily measured.

Nathaniel Persily, a law professor at Stanford University, is among the many — academics, political practitioners, journalists, law enforcement officials and others — who are attempting to understand better the consequences of conducting campaigns and governance here and around the world in the Internet age. He has written about this in a forthcoming issue of the Journal of Democracy in an article with a title that sums up his concerns: “Can Democracy Survive the Internet?”


“Lawsuit: 2015 Redistricting Violated Black Voters’ Rights”


Georgia lawmakers violated federal voting rights law by moving black voters out and white voters in to two state House districts in 2015, according to a lawsuit filed Monday that calls the mid-decade redistricting an effort to protect white Republican incumbents.

The Washington, D.C.-based Lawyers’ Committee for Civil Rights Under the Law filed the federal lawsuit against the state of Georgia on behalf of the state chapter of the NAACP and five residents of the affected districts. Secretary of State Brian Kemp, the state’s top elections official, also is named in the suit.

You can find the complaint here.


Save the Date of July 10 for 7th Annual UCI Law Supreme Court Term in Review

Should be a great one:

7th Annual Supreme Court Term in Review

Monday, July 10, 2017, 10:30 a.m.–12:00 p.m. Pacific Time
Irvine Barclay Theatre (Map)

This exciting and entertaining program reviews the Supreme Court’s key cases decided in the October 2016 term, with an all-star panel of Supreme Court practitioners, journalists, and academics.


Viewers may submit questions via Twitter (@UCILaw or @rickhasen), using the hash tag #ucilawscotus at the end of your question.

This event is approved for 1.5 hours of Minimum Continuing Legal Education Credit by the State Bar of California.
UC Irvine School of Law is a State Bar-approved MCLE provider.


Supreme Court Declines to Hear Alabama Campaign Finance Case

Today without noted dissent the Supreme Court denied cert. in Alabama Democratic Conference v. Marshall, a First Amendment campaign finance challenge to Alabama law brought by Democrats (unusual these days). The cert petition (signed by Bob Bauer, Rick Pildes, John Tanner, Ed Still and others is here.)

My theory is that the Court gets more than enough campaign finance cases coming up on direct appeal from three judge court that it usually is disposed not to take on more that come up from cert. (Decisions not to hear a three-judge court appeal are decisions on the merits, while cert. denials are not.)


FL Ethics Board Clears AG Bondi Over Trump Contribution

Palm Beach Post:

After conducting a probe that included a face-to-face interview with Florida Attorney General Pam Bondi, the state’s ethics commission is throwing out complaints related to Bondi’s decision to seek a $25,000 campaign contribution from Donald Trump nearly four years ago.

Bondi asked for — and got — money from Trump’s charitable foundation about the same time her office was being asked about a New York investigation of alleged fraud at Trump University. She also received a $500 contribution from his daughter Ivanka Trump the same month.

During a closed-door meeting Friday, the Florida Commission on Ethics concluded there was no probable cause that Bondi violated any state laws, according to Mark Herron, a Tallahassee attorney who represented one of the people who filed a complaint against her.


“Audit finds 5oo cases of illegal votes in NC; Undermines GOP claims of widespread fraud”


North Carolina elections officials found that about 500 ineligible voters cast ballots in the 2016 general election — but not enough to change the outcome of any race, according to an audit released Friday.

The State Board of Elections report said the 508 cases — the vast majority active felons — represented a small fraction of the 4.8 million ballots cast. The report didn’t include any evidence of coordinated fraud, and many of the voters claimed to be confused about their eligibility.

The audit’s findings contradict Republican claims that voter fraud runs rampant in North Carolina.