“Pence filling out voter fraud task force”

The Hill:

“He’s announcing that Vice President Mike Pence will lead a task force on this,” Spicer said when asked about Trump’s accusations that 3 million to 5 million people voted illegally in 2016. The White House so far has not offered evidence that so many people filed illegal ballots.

“He named the task force, and the vice president is starting to gather names and individuals to be a part of it.”

Bob Bauer, who co-chaired the Presidential Commission on Election Administration, has written that election professionals should not be part of this effort. Marc Elias, Hillary Clinton’s lawyer, says no Democrats should take part.


“Texas, Trump administration seek to delay voter ID hearing”


The U.S. Justice Department joined Texas’ attorney general Wednesday in asking a federal court to delay a hearing on the state’s voter ID law, the latest signal that the federal government might drop its opposition to the law now that Donald Trump is president.

In the joint filing, the Justice Department and Texas Attorney General Ken Paxton asked to delay next Tuesday’s hearing until summer because the Texas Legislature is considering changes to the existing law, which a federal court has found to be discriminatory. Barack Obama’s Justice Department had joined the lawsuit contesting it.

You can find the joint motion (which I expect the private plaintiffs to oppose) at this link.


NC Voting Case Not Over (Yet) at #SCOTUS? [Corrected post]

Note: An earlier version of this post said that there was a party line vote at the North Carolina Board of Elections not to withdraw from the case.  That’s correct, but it was not the end of the story. I have just received the following letter indicating that the Board takes the position it is not involved in the case:

The State Board of Elections this evening voted unanimously to communicate that it has not taken, and does not take, a position in the above-referenced action. The Board wishes also to communicate that it does not believe the agency is presently represented by private counsel in this matter, nor has the agency acted to retain private counsel in the past.

If the governor and AG have withdrawn the cert. petition, and the Board of Elections has no position in the litigation, it seems that the case should be withdrawn from SCOTUS, unless the Legislature seeks to intervene and argue that the governor lacked the power to withdraw from the case.  As of now, the Legislature is not a party to the case, and it is not clear to me how this would get resolved.

Does this get resolved in state court? Does SCOTUS put consideration of the cert. petition on hold or does it allow the withdrawal of the petition?

I will update this post further if I get more information.

This post has been corrected.



“Voter ID bills try to solve problems that don’t exist”

Douglas Hess oped for the Des Moines Register:

Iowans should take pride in knowing that our state, like many Midwestern states, has a reputation for relatively even-handed public administration. Unfortunately, some officials are bruising that reputation with proposals to add new identification requirements to vote in Iowa and restricting access to absentee ballots.

Secretary of State Paul Pate is correct when he asserts that elections in Iowa need more funding. Moreover, his office’s proposed bills (here and here) include some reforms that could increase convenience for voters. Unfortunately, his proposal also includes unnecessary voter ID requirements.


“From Educational Adequacy to Representational Adequacy: A New Template for Legal Attacks on Partisan Gerrymanders”

Chris Elmendorf has posted this draft on SSRN.  Here is the abstract:

For decades, legal attacks on partisan gerrymanders have foundered on a manageability dilemma: doctrinal standards the Supreme Court has regarded as judicially discoverable have been rejected as unmanageable, whereas the more manageable standards on offer have been dismissed as insufficiently tethered to the Constitution, that is, as undiscoverable. This Article contends that a solution to the dilemma may be found in a seemingly unlikely place: the body of state constitutional law concerned with the adequacy of state systems of public education. The justiciability barriers to partisan gerrymandering claims have near analogues in educational adequacy cases, yet only a minority of the state courts have deemed educational adequacy claims nonjusticiable. Other courts have dealt with putatively standardless education claims by holding that the legislature must adopt educational standards, together with a system of testing, school-finance, and accountability reasonably designed to realize those standards. If the legislature drags its feet, courts have issued provisional remedies, which the legislature is free to update or replace. I explain how the same strategy could be adapted for a new generation of “representational adequacy” claims under broadly worded provisions found in many state constitutions, and possibly under Article I or the Fourteenth Amendment of the U.S. Constitution. I also suggest that by anchoring claims to the generally-worded provisions about representation found in state constitutions and Article I, litigants can mitigate the substantial downside risk of success under the Equal Protection Clause — namely, the inducement of responsiveness-dampening bipartisan gerrymanders. The Appendix provides a state-by-state breakdown of constitutional provisions and relevant precedents, highlighting twenty-two states that appear ripe for representational-adequacy litigation.

I read an earlier draft of this—very creative and recommended!


“Texas Republicans pitch new voter ID law”

Texas Tribune:

Top Texas Republicans unveiled legislation Tuesday that would overhaul the state’s voter identification rules, an effort to comply with court rulings that have found that the current law discriminates against minority groups.

Filed by Sen. Joan Huffman, Senate Bill 5 would add options for Texans who say they cannot “reasonably” obtain one of seven forms of ID currently required at the polls. It would also create harsh criminal penalties for those who falsely claim they need to choose from the expanded list of options.

Lt. Gov. Dan Patrick has granted the bill “priority” status, carving it a faster route through the Legislature. Nineteen other senators have signed onto the bill, and Texas Attorney General Ken Paxton — who is still defending the current ID law in court — applauded the legislation Tuesday.

In a statement, Paxton said the proposal would both ensure the “the integrity of the voting process” and comply with court rulings that have found fault with the current law, considered the nation’s strictest.


“Meet the Math Professor Who’s Fighting Gerrymandering With Geometry”

From Chronicle of Higher Education:

“Changes to voting rules that used to be considered by courts before they could be implemented,” Ms. Duchin says, “are now implemented first and the courts consider them after the fact.” Because of the increase in cases challenging new electoral maps, she says, there’s a need for expert witnesses who understand the mathematical concepts applicable to gerrymandering.

To meet that need, she’s spearheaded the creation of a five-day summer program at Tufts that aims to train mathematicians to do just that. The first three days of the program will be open to the public and available online, with lessons that put redistricting in legal, historical, civil-rights, and mathematical contexts. Attendees of the program’s final two days will participate in one of three specialized tracks on giving expert testimony, teaching, and working with geographic-information systems.

The summer program, created in partnership with the Lawyers’ Committee for Civil Rights Under Law, was announced late in January. Already, Ms. Duchin says, over 900 people have indicated their interest by signing up for a mailing list. “What was really remarkable,” she says, “is that the mailing list didn’t say, Sign up if you care about gerrymandering. It said, We want to train mathematicians as expert witnesses. That’s very specific.”



Read the NC Governor, AG Filings Seeking to Withdraw Cert. Petition in North Carolina Voting Case

You can find the documents here.

As I noted yesterday, there is a dispute over whether the North Carolina governor can end this litigation while the legislature wants it to continue.

There is also the question, as noted in the filing, about the continued participation of the state board of elections. They will be having a meeting today where the issue may be discussed.



“FEC’s Direction in Doubt After Ravel’s Departure”

Bloomberg BNA:

“I admit when I came here [to the FEC], I was naive,” Ravel said in the phone interview Feb. 21.
In her first year at the FEC, Ravel said, she “crossed party lines” and voted with the three Republican FEC commissioners—Lee Goodman, Caroline Hunter and Matthew Petersen—to strike the corporate campaign spending rules overturned by Citizens United, as well as on nearly two dozen campaign finance enforcement cases.
“It didn’t take long to realize that wasn’t going to work,” Ravel said. She blamed her frustration on Republican colleagues, who came with “an ideological bent to ensure that the purposes of the agency were not fulfilled.”…
Some have suggested Trump could try to use Ravel’s departure from the FEC to push the agency to further deregulate money in politics. The president would be barred by law from adding another Republican commissioner to the three currently on the FEC, but he could attempt to circumvent Democrats’ recommendations to replace Ravel, such as by appointing a Libertarian Party member or a conservative independent.
Others suggested, however, Trump was unlikely to pick a fight with Democrats over an FEC appointment with so many other personnel and policy issues at stake early in his presidency.
Robert Lenhard, a former Democratic FEC commissioner now in private law practice at the firm Covington & Burling, suggested Trump should consider “the overall make-up of the FEC in selecting new commissioners” and try to reduce turmoil at the troubled agency.
“Over the last eight years, the FEC has been a turbulent place, with commissioners turning to talk radio, the blogosphere and comedy shows to take their disputes to the public,” Lenhard said in an analysis published on his firm’s website. “Discord at the top has led to a poisonous atmosphere within the building, and the plummeting of employee satisfaction to the lowest depths of any federal agency.

“NC governor and AG seek to end US Supreme Court review of voter ID case”

The News and Observer:

Thomas Farr, a Raleigh attorney who has represented the lawmakers for several years in the elections law case, sent a letter to William McKinney, Cooper’s general counsel, arguing that neither the governor nor Stein have the authority to discharge him and others at his firm from the case and that he and others plan to continue in the case.

If the request by Cooper and Stein to withdraw the appeal is granted, the State Board of Elections, its individual members and its executive director will not immediately be withdrawn from the case. They would have to make similar requests.

A spokesman for the state Board of Elections said the director, board members and staff learned of the decision by Cooper and Stein on Tuesday morning. A conference-call meeting had previously been scheduled for 2:15 p.m. Wednesday, but that meeting is now likely to include discussion about next steps.

North Carolina legislative leaders who shepherded the voting-law changes through the Republican-led General Assembly could continue an effort for U.S. Supreme Court review, but they would have to petition to intervene in the case. They are not named in the lawsuit.


“FEC member: I have the right to demand Trump prove voter fraud claims”


A member of the Federal Election Commission was defiant Tuesday after a nonprofit group said her request that President Donald Trump provide proof of voter fraud merited an investigation into whether her comments were inappropriate.

Ellen Weintraub’s remarks were in response to a letter sent from the Cause of Action Institute to Lynne A. McFarland, the FEC inspector general, about a statement Weintraub made earlier in February. Weintraub called on the President to substantiate his claim of massive voter fraud in New Hampshire, a call she repeated in her statement Tuesday….
The Cause of Action Institute is an independent group classified as a 501 (c) (3), meaning its work cannot be expressly political, and the group’s website says its goal is to ensure “the federal regulatory process is open, honest and fair.”
But a 2015 report from the Los Angeles Times connected the group with conservative megadonors Charles and David Koch, and tax records show the Franklin Center for Government and Public Integrity as well as Donors Trust are among its donors. Tax records also show contributions to the Franklin Center from Donors Trust, a Koch-affiliated group, and the Charles Koch Foundation.

Suit to Force Wake County NC to Clean Its Voter Rolls Under the NVRA Survives Motion to Dismiss

Court order:

Considering VIP-NC’s allegation that the number of registered voters in Wake County has exceeded, and continues to exceed, the number of eligible voters, which allegation is in turn supported by reliable data and WBOE’s failure to use available jury excuse information, a reasonable inference can be drawn that WCBOE is not making a reasonable effort to conduct a voter list maintenance program in accordance with the NVRA. See Martinez-Rivera, 166 F. Supp. 3d at 793-94 (holding that allegations of voter rolls containing more registered voters than citizens eligible to vote—a 105% registration rate—gave rise to a strong inference of a violation of the NVRA and stated a plausible claim for relief). Accordingly, the court finds VIP-NC has stated a claim for violation of 52 U.S.C. § 20507.


Statement from FEC Commissioner Weintraub on Call for Investigation into Trump Voter Fraud Comments

New statement:

Statement of Commissioner Ellen L. Weintraub Regarding Request for Investigation1 Filed With FEC Inspector General

As a Commissioner on the Federal Election Commission, I am acutely aware that our democracy rests on the faith of the American people in the integrity of their elections.
The President of the United States has, without providing evidence, alleged a massive conspiracy to bus thousands of voters from one state to another to cast illegal votes in the 2016 elections.
Any such allegation challenging the legitimacy of federal elections would be of great concern to me. As it happens, this particular allegation falls squarely within the jurisdiction of the Federal Election Commission, since the expense of these buses has not been accounted for on any campaign-finance filing. Accordingly, I have asked the President for his evidence.
But let there be no doubt: It is absolutely within my official duties as a federal election official to comment publicly on any aspect of the integrity of federal elections in the United States. I will not be silenced.

Update: Weintraub tweets:: Here’s the “request for investigation” that a nonprofit filed today with Inspector Gen., seeking to muzzle me.


NC Republican Legislative Leaders Argue NC Gov. Cooper Cannot Fire Outside Counsel in #SCOTUS Voting Case


It’s unclear what the practical effect of this step will be. Ordinarily, a plaintiff withdrawing from a lawsuit would leave the lower court ruling in place. However, in North Carolina, General Assembly leaders have the ability to defend lawsuits on behalf of the state.

A spokeswoman for Senate President Pro Tem Phil Bergernoted that Cooper and Stein aren’t the clients of the outside attorneys, so they cannot fire them, and the attorneys will continue representing the state.

“Roy Cooper’s and Josh Stein’s desperate and politically motivated stunt to derail North Carolina’s voter ID law is not only illegal, it also raises serious questions about whether they’ve allowed their own personal and political prejudices and conflicts of interest to cloud their professional judgment,” Berger and House Speaker Tim Mooresaid in a joint statement.

The State Board of Elections also remains a defendant in the case, but a spokesman for the agency could say only that lawyers for the board are reviewing the matter.

I’ve gone into the morass before trying to figure out who can control NC litigation in these circumstances and I will have to leave this to NC law gurus. It may end up having to be sorted out in state courts.

In the meantime, if the case is not formally withdrawn soon, I’d bet some good money that the four conservative Justices, expecting a Justice Gorsuch, will vote to grant cert.


“Fighting voter ID laws in the courts isn’t enough. We need boots on the ground”

Important Molly McGrath LA Times oped:

States that have implemented voter ID laws have shown little to no interest in helping their citizens comply. And the advocacy organizations that oppose these laws have few resources for direct voter assistance. Instead, groups like the American Civil Liberties Union have focused on challenging voter ID mandates in court. That’s essential, but it’s not enough. As court battles proceed, we must acknowledge our collective obligation to voters like Cinderria by investing in on-the-ground, in-person support.


“Party by Association: Charting a New Path to Responsive Party Government”

Tabatha Abu El-Haj has posted this draft on SSRN.  Here is the abstract:

Hardly a day goes by without a headline decrying the hyperpolarization and dysfunction of Congress. While the 2016 election has heightened these concerns, the fact is that for nearly a decade those who follow politics closely have been sounding alarm bells about the myriad ways our party system is failing to live up to its democratic function. Some have been preoccupied with ideological polarization and legislative gridlock; others with the apparent disconnect between the policies pursued and the preferences of the constituencies represented; others still with an important secondary effect — the aggrandizement of executive power. Whatever the emphasis, there is little question that the growing academic consensus is that the party system is in need of fundamental reform if responsible and responsive governance is to emerge. The results of the 2016 election strongly indicate that this is one arena in which the public and experts agree.

This Article argues that it is time to bite the bullet and admit that a large part of the problem is that the governing theory of how to achieve responsible and responsive parties is just not working. Party reformers — both academics and practitioners — need to accept that “responsible party government” has run its course as a means for achieving democratic accountability, that the Supreme Court ought to abandon its attachment to the theory as a driver of its decisions pertaining to the First Amendment rights of political parties, and that it should be eschewed as the theoretical underpinning of all regulatory proposals.

Without denying that parties are associations of ruling elites in the business of seeking election or that educating voters is difficult, the Article draws on the insights of a range of empirical research in sociology and political science to argue that we can demand more from parties and expect more from citizens. An alternate path to responsive governance, it argues, exists once we conceive of political parties primarily as civic associations rather than producers of brands. Viewed as associations, the capacity of political parties to foster responsiveness and accountability would depend less on their capacity to speak and the coherence of their platform, and more on the depth and breadth of their political networks. The strength of a political party ought to be assessed in terms of its capacity to generate informed, representative political engagement through a broad cadre of party activists with ties to a broader more representative swath of the electorate.

The Article concludes by exploring the implications of an associational party perspective for legal doctrine and regulatory reform, by focusing on two related current controversies. The first is the constitutional challenge, pending in the Supreme Court, to the federal ban on using soft-money to fund campaigns. The second is the debate over how to deregulate party financing to level the playing field so they can effectively compete with Super PACs and similar entities.

Looking forward to reading this!


“Yale Names Heather Gerken as First Woman Law Dean”

The NLJ:

Yale Law School has named its first female dean.

University officials announced Tuesday that Yale Law professor Heather Gerken, 48, will assume the deanship on July 1, replacing outgoing dean Robert Post. Gerken will be the first woman to lead the 193-year-old law school, which holds the No. 1 spot on U.S. News & World Report’s law school rankings.

“Yale Law School is very lucky to be able to draw on the energy, brilliance, and leadership of Heather Gerken,” Post said in an announcement of her appointment. “This is a time of change in the nation and in legal education, and Heather is perfectly situated to take the helm of this extraordinary place. She has the entire confidence of the school.”

Beyond New Haven, Connecticut, legal academics who know Gerken are praising her selection.

“She’s brilliant and she’s a mensch,” said Rick Hasen, a professor at the University of California, Irvine School of Law who, like Gerken, is an expert in election law.

“There are people in the world who are whip smart and always impress you with their intellect, and there are people in the world who are kind, thoughtful and considerate. Heather is the rare person who combines both. I expect she will be an excellent dean.”

Congratulations to Yale!


Breaking: NC Gov, AG Take Steps to Withdraw from #SCOTUS Voting Case–But Case Not (Yet) Over

Last week I explained the following:

North Carolina has filed its reply brief in the North Carolina voting case, and the Supreme Court is set to review it at its March 3 conference. (If the Court does grant review, it typically takes at least two conferences before that announcement is made.)

A few weeks ago, I wrote at Slate that “in the short term, there’s one simple action that could make voting rights a bit more secure: Roy Cooper, the new Democratic governor of North Carolina, and the state’s new Attorney General Josh Stein should withdraw a petition for writ of certiorari pending at the Supreme Court to review the 4th Circuit’s decision striking down North Carolina’s strict voting law.”  I followed that up with a blog post stating that NC law was not clear on whether the Governor had the authority to withdraw the petition, but at the least he could put in a letter expressing his disagreement with the argument that the Supreme Court should review the case.

The governor and AG were non-committal, and now it appears they’ve filed nothing. Without explanation. And with a lot riding on this. By the time the Court would hear the case, we likely will have a Fifth conservative Justice and this important opinion could be reversed.

Now comes a press release from the governor’s office:


February 21, 2017



Governor Cooper, AG Stein Take Steps to Withdraw from Voting Restrictions Case


Raleigh: Today, Governor Roy Cooper and Attorney General Josh Stein have taken steps to withdraw the state’s petition for a Writ of Certiorari to the U.S. Supreme Court of State of North Carolina V. North Carolina State Conference of the NAACP, the voting restrictions law overturned by the Fourth Circuit Court of Appeals last year.


Last year, judges on the Fourth Circuit overturned North Carolina’s 2013 voting restrictions law after finding that it sought to “target African Americans with almost surgical precision” in order to limit access to the ballot box.  The previous administration joined in petitioning the U.S. Supreme Court to hear the case on December 27th.


This morning, the Governor’s General Counsel and Chief Deputy Attorney General jointly sent a letter discharging outside counsel in the case on behalf of the State. Also today, the Governor’s Office and the NC Department of Justice formally withdrew the State and Governor’s request for the U.S. Supreme Court to review the Fourth Circuit’s decision.


After the Governor’s Office and N.C. Department of Justice withdraw, the State Board of Elections, its individual members, and its Executive Director will remain in the case for the time being.


“We need to make it easier for people to exercise their right to vote, not harder, and I will not continue to waste time and money appealing this unconstitutional law,” Governor Cooper said. “It’s time for North Carolina to stop fighting for this unfair, unconstitutional law and work instead to improve equal access for voters.”


“The right to vote is our most fundamental right,” said AG Stein. “Voting is how people hold their government accountable. I support efforts to guarantee fair and honest elections, but those efforts should not be used as an excuse to make it harder for people to vote.”​



It is unclear to me what it means for the Board of Elections and its executive director to “remain in the case for the time being.”  This again is one of those odd aspects as to who controls North Carolina litigation.  Not clear to me if they can get or keep outside counsel. Correction: It appears Republicans still have a majority on this board (at least until the courts decide if the structure of this board can change as NC legislature ordered last year).  Also, I am not sure if the Legislature can seek to intervene at this time. I welcome clarification from those who understand North Carolina law on this point.

More as I know it. But getting this case withdrawn would be a big deal and a good thing.

UPDATE: The post from the NC AG says the plaintiffs will give up their right to up to $12 million in attorney’s fees in exchange for dropping the case. That’s a nice way to frame the issue for NC voters.


“President Trump, with RNC Help, Raised More Small Donor Money than President Obama; As Much As Clinton and Sanders Combined”

New from CFI:

Small donors: After including the money from joint fundraisers, $238.6 million of Trump’s campaign funds came from donors who gave a total of $200 or less. This was 69 percent of the campaign’s individual contributions and 58 percent its total receipts.

As a comparison, Senator Bernie Sanders’ much-noted small donors gave his campaign $99.7 million (44 percent of his individual contributions), while Hillary Clinton’s gave $136.8 million (22 percent). Combining Sanders and Clinton’s small donors would put them just short of Trump’s $238.6 million (see Table 2).

The previous frontrunner was Barack Obama, who raised $218.8 million in 2012 (28 percent) and $181.3 million in 2008 (24 percent) from donors who gave $200 or less (see Tables 3 and 4). Mitt Romney, the Republican nominee in 2012, raised $57.5 million (12 percent) from small donors (Table 3).


Outgoing FEC Commissioner Ravel Predicts More Departures from the FEC, Potentially Costing a Quorum

Dave Levinthal for CPI:

Conceivably, Trump could nominate anyone he wants to the FEC, including Libertarians or independents that share his political sensibilities. Federal law only mandates that the FEC feature no more than three commissioners from any one political party — it says nothing about them having to be Republicans or Democrats. Such a scenario could give Republicans a potential advantage on the commission.

But Walther, for his part, says he’s yet to hear from the Trump administration. The White House did not respond to requests for comment about its intentions for the FEC and Ravel’s resignation.

Ravel, without detailing her reasons, says she believes “others on the commission are likely to go into the [Trump] administration” and soon leave the FEC.

Losing a quorum of four commissioners would stop the FEC’s very ability to conduct business. The commission must have four commissioners in place to take most any official action, from opening investigations to levying fines to offering political candidates and committees formal advice on how to comply with federal law. This last happened in 2008, and for months, it crippled the agency.

Goodman, who could not be reached for comment Sunday, in December told the Center for Public Integrity he’s make a decision in early 2017 about whether to leave the FEC. Hunter on Sunday declined to discuss her future plans. Petersen, Walther and Weintraub have each recently said they don’t have immediate plans to leave the FEC.


NC: “Fact Check: Were ‘tens of thousands’ of 2016 voters not verified?”


During a discussion of voter fraud during this week’s episode of WRAL News’ “On the Record,” Francis De Luca of the conservative Civitas Institute cited a statistic to highlight the potential that some number of people in North Carolina may have wrongfully voted.

“Since this election, tens of thousands of people have not been verified, their verifications failed since the election, or they were removed for other reasons – after voting,” De Luca said.

Civitas has pointed to failed voter verification issues before. Following the 2016 election, De Luca was the lead plaintiff in a lawsuit that complained roughly 3,000 people who registered and voted on the same day failed the state’s verification process, which uses the mail. Asked about the difference between that claim of 3,000 voters and “tens of thousands,” De Luca said the statistic he was citing was more recent than the lawsuit, which he has since withdrawn.

THE QUESTION: Have “tens of thousands” of 2016 voters in North Carolina been removed as active voters since the election? If so, what does that mean?


“Commissioner Ravel’s Departure–and the Virtues of Deadlock”


Rick Hasen suggests that Mr. Trump could now break the agency deadlock and add a libertarian voice to the agency, creating a majority for active deregulation without violating the rule against one party holding more than half the seats.   Once in the past, in the Carter Administration, a president tried a move like this and it did not end well. Maybe in this more deeply polarized time, the outcome would be different. But here again, Mitch McConnell would have a say in the matter, and it would be surprising if he supported this provocative maneuver, which would be mostly a distraction. The FEC is not much of a problem for the Republicans: Deadlock has worked well enough for them.

So why bother to take on this new fight? How much more could the FEC not do?

But if the Republicans did cooperate with the President to pack the Commission with their own, it would cast new light on the reasons why an agency like this might be wisely structured to be 50-50, with no party controlling. Democrats and reformers, resisting the Republican power play, will now appeal to this feature of the FEC’s design. Dreaded deadlock will start to look much better.


“A Long-Running Scandal and a Senate Pick Stir Corruption Questions in Alabama”


Mr. Strange, a former lobbyist widely regarded as ambitious and long seen as the future of Republican politics in Alabama, attended some of the grand jury testimony. Then Mr. Bentley, in his second and final term, chose Mr. Strange as Mr. Sessions’s replacement in the Senate and scheduled a special election for 2018.

When his appointment was announced, Mr. Strange, 63, said the rampant speculation about an inquiry involving the governor was “unfair to him and unfair to the process.” He also said, in a remark that has since been parsed, analyzed and criticized, “We have never said in our office that we are investigating the governor.”

Less than a week later, the man Mr. Bentley chose to succeed Mr. Strange as attorney general, Steven T. Marshall, appointed Alabama’s equivalent of a special prosecutor and asked her to “assume oversight of the state’s interest in the current investigative matter relating to Gov. Robert Bentley, to include all potential criminal matters arising from that investigation.”

One of the lawyers leading the inquiry, Matt Hart, helped to secure the conviction last year of Michael G. Hubbard, then the speaker of the State House of Representatives.

Although many senior Republicans in Alabama and in Washington strongly urged Mr. Bentley to appoint Mr. Strange, the only one of six finalists to have been elected statewide, the choice and Mr. Marshall’s acknowledgment of an investigation still upset many people here.


Irony Alert: Is Kansas SOS Kobach Foot-Dragging on Investigation of Alleged Voter Fraud by Republican Sheriff?

Lawrence Journal-World:

Sheriff McGovern, a Republican who was re-elected in 2016, said he and his mother had no intention of wrongdoing when she registered to vote at an address that she no longer lived at.

When asked why he thought it would be legal for his mother to continue being registered at a house she no longer owned or occupied, McGovern initially responded by saying he discussed the matter with Douglas County Clerk Jamie Shew and was assured that it was OK.

But that explanation left questions about why Lois McGovern’s address was changed to the sheriff’s house just days prior to the November general election — despite the fact that Lois McGovern didn’t live at that address either.

When asked to explain, McGovern said that may have been the point that he received guidance from Shew. He said he may not have received any advice from Shew prior to the primary election. He said he didn’t remember whether he talked to Shew about the primary election issue.

Shew said he is certain that he never gave McGovern any advice that it would be permissible for his mother to remain registered at the Schwarz Road house that she had sold. Shew said that Sheriff McGovern asked about the issue just prior to picking up a ballot for his mother for the general election. Shew said he’s not sure what caused the sheriff to raise the question.

A source with knowledge of County Courthouse workings told the Journal-World that McGovern asked about the issue after a county employee confronted him when he tried to pick up a ballot for the general election. The county employee questioned whether Lois McGovern still lived in the county, said the source, who asked to remain anonymous because the source was not authorized to speak publicly about the matter.

McGovern said he doesn’t recall that confrontation, but also said he could not recall what led him to change his mother’s address to his home….

The secretary of state’s prosecution division is now reviewing the case for possible charges, but it is not clear that Kobach’s office was working on the case prior to the Journal-World contacting the office.

A Douglas County resident filed two complaints about the McGovern incidents: one was filed in early September after the primary election, and the second was filed in late October before the general election. The complainant confirmed that the secretary of state’s office never reached out to get additional information about the case.

County Clerk Shew, a Lawrence Democrat, also said he did not hear from the secretary of state’s office about the complaints. He said that is unusual, because in past instances of complaints, the secretary of state’s office has contacted him early in the process to confirm basic information about the voter’s registration and other details.

Caskey, the election official with Kobach’s office, said he didn’t have information readily available on when the case was forwarded to prosecutors.


Rather Than Continued Stalemate, Federal Election Commission May Now Lead Way to Campaign Finance Deregulation

As we have long been expecting, Federal Election Commissioner Ann Ravel has announced her resignation from the Federal Election Commission, effective March 1. For the last decade or more, beginning with the FEC tenure of Don McGahn (now the White House Counsel for President Trump), the FEC has stalemated on the most important questions about regulation of money in federal elections. Republican commissioners have pursued a deregulatory agenda, reading the laws and regulations in ways to have fewer limits, and much less disclosure, than (I believe) a fair reading of the law would allow. As Commissioner Ravel’s parting shot, she has issued a report on the stalemates, Dysfunction and Deadlock: The Enforcement Crisis at the Federal Election Commission Reveals the Unlikelihood of Draining the Swamp. The deadlocks have allowed a lot of questionable and illegal activity to go through because the chances of FEC enforcement (or court action in the face of a deadlocked FEC) are small.

I will miss having Commissioner Ravel on the Commission—she, along with longtime FEC Commissioner Ellen Weintraub—has used every opportunity to call public attention to deadlock at the FEC and the dangers to American democracy. Commissioner Ravel went further than Commissioner Weintraub, including the infamous “male nipples” segment on the Daily Show.

I cannot begrudge Commissioner Ravel for wanting to leave an agency that is so dysfunctional, and where morale is among the lowest at any federal agency.

And yet, things may now get much, much worse with her departure.

As I explained to Eric Lichtblau in the New York Times, the departure is potentially transformative, because now President Trump can use the vacancy to break the deadlock and turn the agency  into an engine for deregulation. Here’s how:

By law, no more than three commissioners on the FEC can be of the same political party. Generally this has meant three Democrats (or commissioners siding with Democrats) and three Republicans. The President has generally given the leadership of the party in the Senate on the other side a chance to pick commissioners from that party (though there was a dispute in 2007-8 over the controversial nomination of Hans von Spakovsky to the FEC).

Suppose President Trump decides not to follow this convention (and given the fact that he hasn’t followed other conventions, this would be unsurprising) He could appoint a libertarian or independent to Ravel’s position, thereby not violating the rules about having more than three Republican appointees. Thanks to Senator Reid, there is no more filibuster of executive nominations in the Senate, so Republicans in the Senate can force this choice through. The result? Four commissioners who can now do rulemaking, advisory opinions, and take positions in litigation that will make the FEC the leader in deregulating the political process.

This would be extremely attractive to Don McGahn, who has the President’s ear, and essentially declared war on Democrats at the FEC. The only question is if Republicans in the Senate think they would pay a price from Democrats by going down this route.

Think things can’t get much worse at the FEC from the reform perspective? Think again.


What Does Judge Gorsuch Think About Partisan Gerrymandering? A Tiny Tea Leaf

For more than the last decade, since the Supreme Court decided Vieth v. Jubelirer, plaintiffs have been angling to get another case raising the question before the Supreme Court. In Vieth, Justice Kennedy sided with the dissenters in holding that partisan gerrymandering cases are justiciable (meaning courts can hear the challenge), but he also sided with Justice Scalia’s plurality opinion rejecting all of the proposed standards for separating permissible from impermissible considerations of party in redistricting as “judicially unmanageable.”

Now there is a race of sorts to get one or more partisan gerrymandering cases before the Court while Justice Kennedy remains on it. There are notable cases from Wisconsin, North Carolina, and Maryland that the Court could hear within the next term or so. The hope is that there is a new standard that would satisfy Justice Kennedy.

So where would Judge Gorsuch fall here?  We don’t have any direct writing I know of as to his views on partisan gerrymandering. But there is an opinion that Judge Gorsuch wrote dissenting from the denial of rehearing en banc in a case raising the question whether the Guarantee Clause provides a judicially manageable standard to address a complaint about a tax measure.  Judge Gorsuch wrote a paragraph comparing the plaintiffs’ claims with the claims in Vieth on the question of judicially manageable standards:

The situation we confront in this case is more than a little reminiscent of the one the Supreme Court faced in Vieth, where the plaintiffs sought to challenge a political gerrymander as unconstitutional. There, 18 years of experimenting by various courts failed to yield any sure standards for litigating those sorts of cases. Here, we encounter an arguably longer history of failed efforts to develop standards for litigating Guarantee Clause cases involving individual citizen initiatives—one extending into the nineteenth century. There, the plaintiffs sought to identify and defend as workable their own set of legal standards at the motion to dismiss stage, but the Court found those efforts unavailing and affirmed the dismissal of the complaint. Here, the plaintiffs haven’t even attempted to identify workable legal standards for adjudicating their case despite many opportunities over many years. If the law’s promise of treating like cases alike is to mean something, this case should be put to bed now as Vieth’s was then, rather than being destined to drag on forlornly to the same inevitable end. I respectfully dissent.

Make of it what you wish.


Texas Prosecutors Could Target Voters Who Used Affidavits and Refused to Show Valid IDs


The Texas law requires voters to show one of seven approved forms of identification to cast ballots. It was softened in August to allow people without a driver’s license or other photo ID to sign an affidavit declaring that they have an impediment to obtaining required identification.

Even after the affidavits were introduced, voters who possess an acceptable photo ID were still required to show it at the polls.

The revelations come as President Donald Trump makes frequent claims that the nation’s voting systems are vulnerable to fraud. The president has repeatedly said, without citing any evidence, that he would have won the popular vote if not for 3 million to 5 million immigrants in the country illegally who voted for his Democratic opponent, Hillary Clinton.

An Associated Press analysis of roughly 13,500 affidavits submitted in Texas’ largest counties found at least 500 instances in which voters were allowed to get around the law by signing an affidavit and never showing a photo ID, despite indicating that they possessed one.

Others used the sworn declarations to lodge protest statements against the law.

One affidavit from Hidalgo County, along the Texas-Mexico border, read: “Did not want to ‘pander’ to government requirement.” In Tarrant County, an election judge noted on an affidavit: “Had photo ID but refused to show it.”

“If we see that somebody blatantly says ‘I have ID’ and refused to show it, we’re going to turn that over to the D.A.,” said Stephen Vickers, chief deputy elections administrator for Tarrant County, which includes Fort Worth. “If they tried to use the affidavit to get around the system, yeah, I see that as a violation.”


Federal Court Punishes State of Texas for Dragging Its Feet in “Motor Voter” Case

Release from Texas Civil Rights Project:

Today, the U.S. District Court For the Western District Of Texas ordered sanctions against the state of Texas for undue delay in our “motor voter” case, Stringer v. Pablos.

On January 24, the Texas Civil Rights Project, with co-counsel at Waters Kraus LLP, submitted a Motion to Sanction the state for repeatedly, and without justification, ignoring a federal court’s order to provide the necessary documents to move forward with the case.

In his sanctions order, U.S. District Court Judge Orlando L. Garcia found that the state’s months long delay to produce the needed documents has been disruptive, time consuming, cost consuming. The Court also found that the Office of the Attorney General for the State of Texas willfully disregarded court-ordered deadlines.

The state must now incur the reasonable expense in bringing forth the motion to compel and motion to sanction. It must also cover court reporter fees, travel expenses, and attorney’s fees.


“Citing Trump’s voter fraud lie, states are working to make it harder to vote”

Important Kira Lerner at Think Progress;

At the annual gathering of secretaries of state in Washington, D.C. this week, Republican elections chiefs blocked an attempt to official denounceTrump’s lie. Instead, they cited the president’s claims, telling ThinkProgress they support measures like voter ID laws, cuts to same-day registration, and efforts to make it harder to register to vote.

Alabama’s Republican Secretary of State repeated the White House’s unsubstantiated claim that thousands of out-of-state citizens cast ballots in New Hampshire, potentially handing the state to Hillary Clinton. New Hampshire’s Secretary of State defended his state’s voter accessibility while his legislature pushes for a measure that would potentially block thousands of college students from casting ballots. And Nevada’s Secretary of State said she supports voter ID laws because she has never had a problem showing an ID to vote….

Voting experts have repeated since the election that there is no proof of fraud on the level that Trump has claimed. At the National Association of Secretaries of State convention, David Becker, executive director of the Center for Election Innovation and Research, reminded the attendees that if massive fraud had occurred, they would be the first to know.

“There is a system of checks and balances in place,” he said during a panel on trust in elections. “We all know in this room that if there were massive voter registration fraud, we would have seen large numbers of flagged records that didn’t match DMV records or social security records, that we would have seen unusual levels of activity we hadn’t seen before, that we would have seen large numbers of requests for out of state mail ballots that we hadn’t seen before.”

None of that occurred, but that hasn’t stopped elections chiefs from crying fraud.


Judge Gorsuch: States Can Keep Ineligible Candidates Off the Election Ballot

I just came across an unpublished 2012 10th Circuit opinion from Judge Gorsuch in Hassan v. Colorado.  Here is the full opinion, and I’ve bolded the most important last sentence:

NEIL M. GORSUCH, Circuit Judge.

 Abdul Karim Hassan is a naturalized citizen who wishes to run for the Presidency of the United States. This even though the Constitution says “[n]o person except a natural born Citizen … shall be eligible to the Office of President.” U.S. Const. art. II, § 1, cl. 4. After the Colorado Secretary of State informed him that his ineligibility for office precluded his placement on the ballot, Mr. Hassan brought this lawsuit asserting that the natural-born-citizen requirement, and its enforcement through state law barring his access to the ballot, violates the Citizenship, Privileges and Immunities, and Equal Protection Clauses of the Fourteenth Amendment. The magistrate judge heard the case on consent of the parties and eventually concluded that the Fourteenth Amendment did not affect the validity of Article II’s distinction between natural-born and naturalized citizens. See Hassan v. Colorado, 870 F.Supp.2d 1192 (D.Colo.2012); see also Hassan v. New Hampshire, No. 11–cv–552–JD, 2012 WL 405620 (D.N.H. Feb. 8, 2012) (reaching same conclusion in Hassan’s challenge to exclusion from New Hampshire ballot). The magistrate judge granted summary judgment to defendants and Mr. Hassan appealed.

We affirm. We discern no reversible error in the magistrate judge’s disposition and see little we might usefully add to the extensive and thoughtful opinion he issued. To be sure, Mr. Hassan contends the magistrate judge overlooked one aspect of his claim. Mr. Hassan insists his challenge to Colorado’s enforcement of the natural-born-citizen requirement did not depend exclusively on invalidation of Article II by the Fourteenth Amendment. Even if Article II properly holds him ineligible to assume the office of president, Mr. Hassan claims it was still an unlawful act of discrimination for the state to deny him a place on the ballot. But, as the magistrate judge’s opinion makes clear and we expressly reaffirm here, a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office. See generally  Munro v. Socialist Workers Party, 479 U.S. 189, 193–95, 107 S.Ct. 533, 93 L.Ed.2d 499 (1986); Bullock v. Carter, 405 U.S. 134, 145, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972).

The judgment of the district court is affirmed. Appellant’s motion for publication is denied.

Richard Winger pointed to the campaign finance decision in Riddle as a good one for minor parties. This one is less good.

UPDATE: Richard Winger weighs in.


What Does Judge Gorsuch Disagree with in His 2005 National Review Online Piece? Ask Him at Hearing


Durbin, D-Ill., also said Gorsuch indicated support for criminal justice reform — a Durbin priority — and disavowed a 2005 National Review article he’d written criticizing Democrats and liberals.

“He said it was probably one of the biggest mistakes he ever made,” Durbin recalled Thursday. “It’s a terrible article. He wishes it would just disappear.”

Here is a snippet from the article:

There’s no doubt that constitutional lawsuits have secured critical civil-rights victories, with the desegregation cases culminating in Brown v. Board of Education topping the list. But rather than use the judiciary for extraordinary cases, von Drehle recognizes that American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education. This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary. In the legislative arena, especially when the country is closely divided, compromises tend to be the rule the day. But when judges rule this or that policy unconstitutional, there’s little room for compromise: One side must win, the other must lose. In constitutional litigation, too, experiments and pilot programs — real-world laboratories in which ideas can be assessed on the results they produce — are not possible. Ideas are tested only in the abstract world of legal briefs and lawyers arguments. As a society, we lose the benefit of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide.

So what does he think is the “big mistake” here?  What does he no longer believe? The answer would be illuminating as to the judge’s approach to access to the courts and constitutional rights.


“Trump’s Labor Pick Has a History of Attacking Voting Rights”

John Nichols for the Nation:

Robert Kengle, the deputy chief of the Voting Section, said he left his position because of the extreme politicization of the department during the time of Acosta’s leadership. Kengle said the controversial letter brief in the Ohio case amounted to “cheerleading for the Republican defendants.” “It was doubly outrageous because the allegation in the litigation was that these were overwhelmingly African-American voters that were on the challenge list,” he explained to the McClatchy Newspapers DC bureau, which reported in 2007 that “Former Justice Department civil rights officials and election watchdog groups charge that [Acosta’s] letter sided with Republicans engaging in an illegal, racially motivated tactic known as ‘vote-caging’ in a state that would be pivotal in delivering President Bush a second term in the White House.”…

Lawyers’ Committee for Civil Rights Under Law President and Executive Director Kristen Clarke said she was “astonished by the nomination of Alexander Acosta to serve as Secretary of the US Department of Labor.”

“Mr. Acosta led the Civil Rights Division at a time that was marked by stark politicization, and other improper hiring and personnel decisions that were fully laid to bare in a 2008 report issued by the Office of Inspector General (OIG),” said Clarke. “The OIG found that actions taken during Mr. Acosta’s tenure violated Justice Department policy and federal law. Political and ideological affiliations were used as a litmus test to evaluate job candidates and career attorneys, wreaking havoc on the work of the Division. This egregious conduct played out under Mr. Acosta’s watch and undermined the integrity of the Civil Rights Division. It is hard to believe that Mr. Acosta would now be nominated to lead a federal agency tasked with promoting lawful hiring practices and safe workplaces.”