“These Two Articles of Impeachment Are More Than Good Enough”

I have written this piece for Slate. It begins:

On Monday, House leaders released a historic pair of articles of impeachment against President Donald Trump. Some who have been horrified by Donald Trump’s conduct in office have raised questions over whether Democrats were right to include just two articles, arguing that Trump’s obstruction of the Mueller probe, or emoluments violations, or extreme immigration policies might warrant many more charges and a lengthier impeachment process. This is missing the bigger picture: Critics of Speaker of the House Nancy Pelosi should stop their handwringing and celebrate the fact that the House did a very good job in drafting these articles of impeachment, which will likely be voted on by the full House of Representatives before Christmas. The articles are short and to the point. They focus on Trump’s twin offenses of abusing his power by withholding military aid to Ukraine and a meeting with Ukraine’s president in an effort to pressure that country to announce an investigation of Trump’s political rival, Joe Biden, and Trump’s obstruction of Congress by ordering his staff to ignore all lawful subpoenas for documents and witness testimony relevant to the impeachment inquiry.

The Democrats’ path followed the approach I suggested in a September 27 article in Slate for a “clean impeachment strategy laser-focused on the Ukraine allegations” that would “not require a Carrie Mathison corkboard connecting the cast of characters with yarn.”

As many are second-guessing House’s actions, I want to respond to some objections that have been floating around:

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“Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress’s Power to Enforce It”

Leah Litman and I have posted this draft on SSRN (forthcoming, Georgetown Law Journal). Here is the abstract:

This Article, prepared for a Georgetown Law Journal symposium on the Nineteenth Amendment’s 100-year anniversary, explores and defends a “thick” conception of the Nineteenth Amendment right to vote and Congress’s power to enforce it. A “thin” conception of the Nineteenth Amendment maintains that the amendment merely prohibits states from enacting laws that prohibit women from voting, once the state decides to hold an election. And a “thin” conception of Congress’s power to enforce the Nineteenth Amendment maintains that Congress may only supply remedies for official acts that violate the Amendment’s substantive guarantees.


This piece argues the Nineteenth Amendment does more. A thick understanding of the Nineteenth Amendment’s substantive right is consistent with the Amendment’s text and history, as well as with a synthetic interpretation of the Constitution and its expanding guarantees of voting rights. The thick understanding of the Nineteenth Amendment would allow voting rights plaintiffs to attack restrictive voting laws burdening women, especially when those laws burden young women of color, who are guaranteed nondiscrimination in voting on the basis of age and race as well. And a thick understanding of Congress’s power to enforce the Nineteenth Amendment offers a way to redeem the Amendment from some of its racist origins and entanglement with the sexism that limited the Amendment’s reach, and to reinforce the democratic legitimacy of the Constitution. The thick understanding of Congress’s enforcement power would give Congress the ability to pass laws protecting women from voter discrimination and promoting their political equality. Nonetheless, the current Court is unlikely to embrace a thick understanding of the Nineteenth Amendment.

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“House Democrats Unveil Articles of Impeachment Against Trump”

NYT:

House Democrats announced on Tuesday that they would move ahead this week with two articles of impeachment charging President Trump with abuse of power and obstruction of Congress, as they accused him of violating the Constitution by pressuring Ukraine for help in the 2020 election….

The announcement comes a day after Democrats summed up the central allegations in their impeachment case against Mr. Trump: that he pressured Ukraine to announce investigations into his political rivals while withholding as leverage a coveted White House meeting for its president and $391 million in critical security assistance. His actions, they argued in a lengthy hearing at the Judiciary Committee, had placed the president’s personal political interests above those of the country, threatening the integrity of the election and national security in the process.

After more than two months of investigating the Ukraine matter, and a year of confrontation between the Democratic House and Mr. Trump, the impeachment process is now likely to unfold quickly. The Judiciary Committee plans to promptly begin debating the articles as soon as Wednesday, and could vote by Thursday to recommend them to the full House of Representatives for final approval. If the House follows through as expected next week, Mr. Trump could stand trial in the Senate early in the new year.

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“Comparative Election Administration: A Legal Perspective on Electoral Institutions”

Dan Tokaji has posted this draft on SSRN (forthcoming, Edward Elgar volume on comparative election law edited by Jim Gardner). Here is the abstract:

This chapter examines the institutions responsible for administering elections around the world and considers what law, lawyers, and legal scholars might do to strengthen democracy through their improvement. A now-substantial body of literature examines election management bodies in both emerging and established democracies. The consensus is that independent election administration is essential to electoral integrity. This chapter challenges the conventional wisdom in two respects. First, it argues that the formal independence of election management bodies is less important than their functional impartiality. Interactions between election institutions and political parties often promote evenhanded administration better than complete insulation from politics. Thus, formal independence may ultimately detract from functional impartiality. Second, this chapter challenges the narrow focus on election management bodies and attendant disregard for other institutions involved in elections, especially judicial and quasi-judicial actors. It argues that comparative analysis should focus on the interaction among the various entities that collectively comprise the electoral system, including both administrative and adjudicative bodies. The chapter concludes by proposing criteria for assessing electoral systems and suggesting that election lawyers and scholars engage more deeply in international election observation.

Looking forward to reading this!

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“Politics as Pretext”

Joshua Sellers has posted this draft on SSRN (Howard Law Journal). Here is the abstract:

One of the more convoluted dilemmas in election law involves distinguishing government actions motivated by race from those motivated by partisanship. In this Essay, prepared for the Howard Law Journal’s 15th Annual Wiley Branton Symposium, I argue that the race or party dilemma is simply a variant of a dilemma that law has confronted before. It is a dilemma about the extent of law’s — and by extension, society’s — comprehension and definition of “institutional” or “systemic” discrimination.

In support of this claim, the Essay examines two doctrines in which the Supreme Court attended to institutional or systemic discrimination: the state action doctrine and the Civil Rights Act of 1964’s Title VII doctrine, as encapsulated in the Court’s 1971 decision, Griggs v. Duke Power Company. More precisely, it compares the assumptions and inferences about the nature of racial discrimination informing both the leading state action cases and Griggs, with those informing current election law doctrines in which the race or party distinction obtains.

Ultimately, the Essay argues that if the elimination of institutional or systemic discrimination is the goal, then the stark dichotomy between race and partisanship found in election law doctrines should be dispensed with.

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“The Cybersecurity 202: Russia’s efforts to target U.K. elections a stark warning for 2020”

WaPo:

An alleged Russian influence campaign to undermine this week’s British elections shows how tough it will be to keep foreign influence out of the 2020 U.S. contest.

Russian-backed accounts on Reddit actively worked to boost the trove of documents appearing to detail key U.S.-U.K. trade negotiations that have been gaining traction over the internet for months, the social sharing site revealed Saturday. It’s not clear whether the documents were leaked or hacked, but Britain’s opposition Labour Party, has been using the seemingly genuine documents to slam the ruling conservative party for considering giving U.S. companies far more influence over Britain’s popular state-run National Health Service as part of a post-Brexit trade deal. 

It’s yet another example of Russia’s powerful digital army allegedly seeking to influence the outcome of a Western election — and it offers a stark reminder of how influence operations can be highly effective even before they’re identified. This dramatically undermines government and industry efforts to blunt their power or hold off their spread. 

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“House Passes Voting Rights Bill Despite Near Unanimous Republican Opposition”

NYT:

The House voted on Friday to reinstate federal oversight of state election law, moving to bolster protections against racial discrimination enshrined in the 1965 Voting Rights Act, the landmark civil rights statute whose central provision was struck down by the Supreme Court.

Representative John Lewis, Democrat of Georgia, who was beaten in 1965 while demonstrating for voting rights in Alabama, banged the gavel to herald approval of the measure, to applause from his colleagues on the House floor. It passed by a vote of 228 to 187 nearly along party lines, with all but one Republican opposed.

The bill has little chance of becoming law given opposition in the Republican-controlled Senate and by President Trump, whose aides issued a veto threat against it this week.

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“Nonprofit founded by Donald Trump allies plans to give away $25,000 in cash at upcoming Cleveland event”

Cleveland.com:

Prominent supporters of President Donald Trump say they’re planning an event in Downtown Cleveland next weekend, attended by Trump administration officials, that will include a $25,000 cash giveaway for the general public….

Lanier said the event will be held from 3-5 p.m. in the atrium of the Galleria shopping center. He said the money will be given away in increments of $300 to $1,000. He said organizers plan to bring in residents of low-income housing facilities to attend, but the event also is free and open to the general public. Anyone who attends will be given a raffle ticket. Prizes will be awarded in a live drawing, and will be redeemable at the end of the night, he said.

He did not say who donated the prize money, other than to say it’s coming from the non-profit.

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Something Stinks with North Carolina Voting Machine Process

Carolina Public Press:

A voting system certified and tested earlier this year for use in North Carolina’s March 2020 primaries won’t be available, according to manufacturer Elections Systems and Software, so the company’s lobbyists have suggested the state quickly approve one of its other systems instead.

While the N.C. Board of Elections director has recommended going along with the vendor on the substitution, others see the move as a deceptive bait and switch.

One Board of Elections member, Stella Anderson, has objected to the situation, thereby forcing the board to convene a special meeting on the issue. She and others have questioned the integrity of the company and suggested both ES&S and board staff have used language that understates the significance of the difference between the two systems and misrepresents federal government requirements for approving such modifications to voting systems.

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Questions About the Small-Donor Matching Program in the Democrats’ Campaign-Finance Reform Bill

I mentioned in a prior post that I wanted to raise certain specific issues with the small-donor, public financing program the House Democrats currently propose as their vision of campaign-finance reform.

This proposal is modeled on New York City’s small-donor matching program, which has been in existence for about 30 years. But there is one highly significant difference between the NYC program and the one the House voted for in H.R. 1. The NYC program provides public matching funds only for small-donor contributions made by city residents, while the federal proposal does not analogously limit its matching funds to contributions to candidates from residents of the House district at issue.

In my recent essay on small donors and political polarization, I discuss why this choice not to limit public matching funds to contributions from in-district residents is so significant:

When it comes to reducing the polarizing effects of multiplying small donations with a six-to-one match, this is a consequential choice. From a realpolitik perspective, it is easy to understand why House Democrats would not want to limit matching funds to in-district contributions. These days, a substantial percentage of House candidates’ funds from individual contributors come from out of state. This is a reflection of the greater nationalization of elections, as well as the greater national interest in individual House races when partisan control of the House is perceived to be up for grabs. In a major study of the 2004 elections, the average congressional district received contributions from seventy other districts, while in 1996, the figure had only been fifty-five. By 2004, a majority of individual contributions came from district residents in fewer than 20% of congressional districts. In nearly the same percentage of districts, outside money constituted 90% or more of the candidates’ individual contributions. Moreover, this money is mostly not coming from those who live in nearby districts, but from people living in a relatively small number of geographically distant areas, such as wealthy parts of New York, Los Angeles, Florida, Chicago, Maryland, New Jersey, Atlanta, and others. Indeed, 5% of congressional districts in this 2004 analysis provided more than 25% of all non-local money; a mere 20% of congressional districts provided a majority of the outside money. More recent work reaffirms this and concludes that the average House member receives just 11% of individual contributions from in-district donors, while donors come overwhelmingly from a small number of metropolitan areas, such as those noted above.

Moreover, it is hardly surprising that members who receive the most money from outside their districts are more ideologically extreme than their party’s other representatives. Indeed, even for members who represent moderate districts, if they receive more than $353,000 in outside funds, they vote in ways characteristic of the party’s ideological wing rather than the preferences of their more moderate constituents. Money that flows from New York and California to House districts across the country is almost inevitably going to reflect more nationalized, ideological motivations than in-district money. Out-of-state money will flow to those with the highest national profile, and those figures are not likely to be moderates. As one academic expert puts it, “all that outside funding may be leading to a more polarized Congress, as it appears to encourage members to pay attention to donors whose ideologies are more extreme than voters.”

To reduce the polarizing effects of individual contributions, a national small-donor matching bill could limit public matching funds to small-donor contributions from district residents. A direct ban or limit on the aggregate amount of out-of-district campaign contributions from American citizens would almost certainly be unconstitutional. But the constitutional question is considerably different when the government is subsidizing elections and deciding, on non-viewpoint-based grounds, that it wants to match only in-district contributions, for legitimate public policy purposes such as increasing local representatives’ responsiveness to their constituents. Limiting matching funds to district resident contributions would reduce the effects of the currently proposed matching program in stoking the fires of polarization. But because few individual contributions come from within the district, such a limitation would also mean the matching program would be limited in overall effect and would not provide as strong a countervailing force against the weight of larger individual contributions (or against outside spending, as well).

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“‘Dark money’ ties raise questions for GOP Sen. Ernst of Iowa”

AP:

An outside group founded by top political aides to Sen. Joni Ernst has worked closely with the Iowa Republican to raise money and boost her reelection prospects, a degree of overlap that potentially violates the law, documents obtained by The Associated Press show.

Iowa Values, a political nonprofit that is supposed to be run independently, was co-founded in 2017 by Ernst’s longtime consultant, Jon Kohan. It shares a fundraiser, Claire Holloway Avella, with the Ernst campaign. And a condo owned by a former aide — who was recently hired to lead the group — was used as Iowa Values’ address at a time when he worked for her.

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Supreme Court Has Agreed to Hear Dispute over Constitutionality of Delaware Law Requiring Partisan Balance on Some State Courts

The Court’s order added a question about standing. The questions presented are:

  1. Does the First Amendment invalidate a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a “bare majority” on the State’s three highest courts, with the other seats reserved for judges affiliated with the “other major political party”?
  2. Did the Third Circuit err in holding that a provision of the Delaware Constitution requiring that no more than a “bare majority” of three of the state courts may be made up of judges affiliated with any one political party is not severable from a provision that judges who are not members of the majority party on those courts must be members of the other “major political party,” when the former requirement existed for more than fifty years without the latter, and the former requirement, without the latter, continues to govern appointments to two other courts?
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4th Circuit Unanimously Holds Maryland Law Requiring Online Platforms to Post Information About Political Advertisers Violates the First Amendment

You can find the opinion here. Importantly, the lawsuit did not challenge that part of the law requiring the purchasers of online advertising to make certain disclosures and disclaimers. The lawsuit challenged only the portion putting obligations on “online platforms” (such as Facebook and the Washington Post) to publish information about the purchasers of the advertising.

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“House Votes to Restore the Voting Rights Act”

Ari Berman:

The House Judiciary Committee and the House Administration Committee held extensive hearings, including in states like Georgia and Texas, to document the need for a renewed Voting Rights Act. The bill passed the House on a largely party-line vote, 228 to 187. Unlike in 2006, when the reauthorization of the Voting Rights Act passed the House by a vote of 390-33, only one House Republican, Brian Fitzpatrick (R-Pa.) voted for the new bill. Senate Majority Leader Mitch McConnell has already declared his opposition. (McConnell also called a sweeping democracy reform bill passed by House Democrats in March a “power grab” by Democrats.)

Although the VRAA has no chance of becoming law this year, the passage of the bill lays the groundwork for Democrats to make voting rights a major legislative priority should they recapture the Senate and the White House in 2020.

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Is Mike Bloomberg Breaking the Law by Continuing to Control Bloomberg News While a Presidential Candidate?[UPDATE: Probably Not]

News item:

Michael Bloomberg temporarily had a tiny but extremely questionable advantage in the 2020 presidential race: if you typed “Mike” into one of his company’s roughly 325,000 news terminals around the globe, you were redirected to his campaign site, reported the Financial Times.

Federal regulations generally exempt the press from having to report what would otherwise count as campaign expenditures or electioneering communications. So, for example, here is an exemption for press activities from the FEC definition of “expenditure:” “(i) any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate.” (My emphasis.)

While Bloomberg has put limits on what Bloomberg News can cover, the news organization is still writing about presidential candidates. As I type this, I can find the following article on Bloomberg News’s site: Joe Biden Calls Iowa Man ‘Damn Liar’ for Raising Ukraine Issue.

But the law only exempts when the press makes expenditures (which would be express advocacy, like “Vote for Mike”) and electioneering communications, which include TV and radio (but not online) news and commentary broadcast 30 days before a primary or 60 days before the general election. Bloomberg News can easily avoid express advocacy, but it has TV and radio coverage in addition to its online coverage, which raises a more serious question as we approach the first 30-day window before the first presidential primaries and caucuses.

Brad Smith in an article in the Daily Caller makes the following argument:

Former FEC Chairman Bradley Smith told the DCNF that the key factor to determining whether Bloomberg News’s editorial policy puts its press exemption at risk is whether the commission determines that Trump is Michael Bloomberg’s opponent at this stage of the Democratic primary.

“A good argument nonetheless could be made that the press exemption should not apply here, given Bloomberg’s own declaration, ‘I’m running for president to defeat Donald Trump and rebuild America,’” Smith said, citing Michael Bloomberg’s campaign website.

However, Smith said he believes the better argument is that Michael Bloomberg and Trump aren’t officially considered opponents from a campaign finance perspective until they have secured their respective parties’ nominations. 

“I don’t believe that the FEC or a court have ever ruled on this type of situation, so I suppose it’s an open question,” Smith said. “Certainly, it reveals the flaws of having a regime in which some very large, influential corporations (those designated ‘press’) have a freedom that other Americans do not.”

Brendan Fischer of the Campaign Legal Center told the Daily Caller: “Bloomberg News declining to cover any Democratic presidential hopeful means that they are giving equal coverage to all opposing candidates in the primary, but President Trump will be the Democratic nominee’s opponent in the general.” “Fischer said it would be appropriate for the FEC to weigh in on the legality of Bloomberg News’s editorial policy, but the commission is currently unable to take any official actions as it has only three active commissioners on its six-member board, rendering the agency incapable of meeting its four-member quorum”

I’m not sure that the Trump/Democratic rivals issue is the right question. Instead, it is about whether Bloomberg News can continue to keep its press exemption even during the primary period if it is broadcasting on TV and Radio and covering the candidates. Seems to me this is a question that deserves more scrutiny. I welcome the thoughts of others.

UPDATE: Brad Smith points me to 11 c.f.r. 100.132, which creates a further exemption for:

“… a news story (a) That represents a bona fide news account communicated in a publication of general circulation or on a licensed broadcast facility; and (b) That is part of a general pattern of campaign-related news account that give [sic] reasonably equal coverage to all opposing candidates in the circulation or listening area, is not an expenditure.”

This regulation strikes me as inconsistent with the text of the statute, but given that it exists and there is no working FEC, this is probably enough to give Bloomberg a safe harbor to do what he’s doing.

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“Indictment Details How Emirates Sought Influence in 2016 Campaign”

NYT:

The indictment accused Mr. Nader of funneling more than $3.5 million in illicit campaign donations through Mr. Khawaja to buy access and influence in Washington — initially with Mrs. Clinton and her Democratic allies during the 2016 campaign, and then with Donald J. Trump after he won the election — to gain “favor” and “potential financial support” from an unnamed foreign government.

A close reading of the 64-page indictment makes clear that the unnamed government is the United Arab Emirates, where Mr. Nader owns a business and advises the crown prince.

At a time of intense debate in Washington over foreign interference in American politics, critics say the scheme outlined in the indictment is one of the most brazen attempts in memory by a foreign power to buy influence during an election. Although lobbyists with foreign clients routinely contribute to campaigns, seldom has a foreign head of state been so personally linked to allegations of evading campaign finance laws.

It is the latest example of an ostensible American ally seeking to shape American policy from the inside, and it is all the more striking because Crown Prince Mohammed, widely known as M.B.Z., is one of the biggest foreign spenders on legal forms of influence — from hiring registered lobbyists to funding think tanks….

Mr. Khawaja and Mr. Nader attended Mrs. Clinton’s election night party in Manhattan, according to people familiar with the event.

But immediately after Election Day, the indictment charges, both Mr. Nader and Mr. Khawaja pivoted to redirect their illicit support to Mr. Trump, beginning with a $1 million donation for the inauguration.

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Mississippi: “Southaven Republican challenges 14-vote loss to Democrat, asks House to overturn election”

Mississippi Today:

State Rep. Ashley Henley, a Southaven Republican, is asking the GOP-led Mississippi House to overturn the results of the election she narrowly lost to Democrat Hester Jackson-McCray.

Jackson-McCray won the Nov. 5 general election by 14 votes, according to election results certified this week by the Secretary of State’s office.

Henley filed the election challenge on Wednesday, according to a copy of the challenge obtained by Mississippi Today. In the petition, Henley writes that several findings of her ballot box examination show a failure “to adhere to proper election procedures to insure a fair and legitimate election” under state law.

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“Voter Identification and Nonvoting in Wisconsin—Evidence from the 2016 Election”

Michael G. DeCrescenzo and Kenneth R. Mayer have written this article for ELJ. Here is the abstract:

How much did Wisconsin’s voter identification requirement matter in 2016? We conducted a survey of registered nonvoters in the counties surrounding the cities of Milwaukee and Madison to estimate the number of registrants who experienced ID-related voting difficulties in the 201 presidential election. We estimate that 10 percent of nonvoters in these counties lack a qualifying voter ID or report that voter ID was at least a partial reason why they did not vote in 2016, and six percent of nonvoters lacked a voter ID or cited voter ID as their primary reason for not voting. Theoretically, we argue that voter ID requirements ‘‘directly’’ affect voters who lack qualifying IDs but also ‘‘indirectly’’ affect voters who are confused about their compliance with the law. We find evidence of such confusion, with many respondents mistakenly believing that they did not have th necessary ID to vote when they actually did. Our analysis permits us to calculate bounds on the possible turnout effect in 2016. Most of our credible estimates suggest that the voter ID requirement reduced turnout in these counties by up to one percentage point.

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“Law Professor Gives Damning Testimony On Trump Soliciting Foreign Election Interference”

HuffPost:

Impeachment hearings continue on the Hill Wednesday, with a panel of legal scholars testifying before the House Judiciary Committee what exactly constitutes impeachable behavior.

Among them is Stanford Law professor Pamela S. Karlan, who used a domestic analogy to help explain why President Donald Trump’s pressuring and withholding of aid to Ukraine was controversial.

“To see why, imagine living in a part of Louisiana or Texas that’s prone to devastating hurricanes and flooding,” Karlan said. “What would you think if, when your governor asked the federal government for the disaster assistance that Congress has provided, the President responded, ‘I would like you to do us a favor. I’ll meet with you and send the disaster relief once you brand my opponent a criminal?’”

“Wouldn’t you know in your gut that such a president had abused his office, betrayed the national interest and tried to corrupt the electoral process?” 

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“Civil rights activists seek block on state’s voter ID law. Judge in Winston-Salem says she will decide quickly.”

Winston-Salem Journal:

For the second time in four years, a version of North Carolina’s election law was in federal court, this time based on allegations that if enacted, black and Latino voters would be disenfranchised.

Attorneys for the North Carolina NAACP and several local chapters, including Winston-Salem, were in a Winston-Salem courtroom Tuesday asking U.S. District Judge Loretta C. Biggs to grant a preliminary injunction that would block the law from going into effect for the March 3, 2020, primary elections.

They argued that black and Latino voters disproportionately lack the photo IDs required under the law and face more obstacles to obtaining those photo IDs. The law would result in black and Latino voters being denied the right to vote at the polls, they argued. They further argued that state Republicans intentionally put the law into place to racially discriminate against black and Latino voters. The North Carolina NAACP filed a federal lawsuit against the law in December 2018.

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Ninth Circuit Panel, in Unpublished Opinion, Unanimously (and Briefly) Rejects Constitutional Challenge to California Voting Rights Act

You can find the four page opinion here.

This is a big deal. This is a major case brought by Ed Blum (who has brought us Shelby County, the Fisher affirmative action case, and others) and litigated by William Consovoy, who also represents President Trump. I was surprised that the arguments did not get greater analysis.

There will no doubt be further appeals, but this non-pub makes it less likely the Supreme Court would get involved. (It still could happen.)

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Kentucky Governor Bevin Makes Unsupported Voter Fraud Charges Again, This Time with a Racist Dog Whistle

WFPL:

During a series of interviews on talk radio shows Wednesday morning, outgoing Republican Gov. Matt Bevin said that he lost his race for reelection because the Democratic Party “harvested votes in urban communities.”…

“They were able to go into urban communities where people are densely populated on college campuses and public housing projects.”

Bevin has repeatedly questioned the outcome of the election, suggesting — without evidence — that voter fraud took place…

Vote harvesting refers to collecting absentee or mail-in ballots in order to sway an election. The practice is illegal in some states, but Kentucky is one of 27 states that allows absentee ballots to be returned by a designated agents….

During the interview on 55KRC, Bevin said that he was encouraged by his supporters on Election Day, but that Democrats brought “more less-informed people” to the polls.

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“Prominent Political Donors Charged in Campaign Finance Scheme”

NYT:

An influential political power broker who was a witness named in the Mueller report was among eight people charged with conspiring to conceal the source of excessive contributions to groups supporting Hillary Clinton’s 2016 presidential campaign, the Justice Department announced on Tuesday.

Prosecutors say George Nader, a Lebanese-American businessman who was a cooperating witness in Robert Mueller’s investigation into Russian interference in the 2016 presidential election, conspired with Ahmad “Andy” Khawaja, the owner of an online payments company, to conceal more than $3.5 million in donations to the groups. The donations let Mr. Khawaja gain access to Mrs. Clinton during the campaign, and he also visited with President Trump in the Oval Office, according to an investigation by The Associated Press last year.

The indictment, unsealed on Tuesday, does not name Mrs. Clinton as the candidate who received the donations. But the indictment refers to a female candidate, and donor records indicate Mr. Khawaja gave Democrats and a political action committee supporting Mrs. Clinton millions of dollars. …

Prosecutors said Mr. Khawaja made the donations in the names of himself, his wife and his business, but that the money actually came from Mr. Nader. While arranging the payments, Mr. Nader reported to an official of an unspecified foreign government about his efforts to gain influence, according to an indictment unsealed on Tuesday.

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“The Cybersecurity 202: Ukraine claims threaten Senate consensus on Russian hacking”

WaPo:

A tenuous Senate consensus on the dangers of Russian election hacking is being threatened by the GOP’s embrace of President Trump’s debunked argument that Ukraine also interfered in 2016.

Numerous Senate Republicans promoted that argument this week, bucking the conclusion of U.S. intelligence officials and ignoring warnings the claims are part of a Kremlin-backed effort to muddy the waters on Russia’s own interference.

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Kansas: “U.S. Rep. Steve Watkins tangled in voter fraud, perjury allegations for listing UPS store as residence”

Topeka Capital-Journal:

U.S. Rep. Steve Watkins’ decision to sign a Kansas voter registration form and two other election documents that asserted his residential address was a UPS Store in Topeka could constitute felony voter fraud under federal law and election perjury under state statute, officials said Tuesday.

Shawnee County records show the first-term Republican listed his official residence as 6021 S.W. 29th St. in Topeka, which corresponds to a UPS Store, when he signed a form to change his residency for voter registration purposes in August, signed an application for a mail-in ballot in October and signed a document to complete advance voting for the November election.

It isn’t clear where the congressman physically resided in Kansas after August nor what Topeka precinct he was legally qualified to be part of when voting in November. By asserting his place of residence to be the UPS Store, Watkins left the Topeka City Council’s 5th District for the city council’s 8th District. He then cast a November ballot in an 8th District contest decided by 13 votes.

Jim Joice, Watkins’ chief of staff, said questions about the residency issue posed by The Topeka Capital-Journal led to a staff review of the congressman’s voter registration. He said Watkins mistakenly portrayed his residence to be the UPS building.

“He just filed it incorrectly,” said Joice, who deflected criticism of Watkins. “I think that’s a little ludicrous.”

A bipartisan contingent of Kansas politicians was critical of Watkins’ handling of his residential declaration. Several of these Democrats and Republicans said they suspected Watkins’ acts rose to the level of criminal conduct.

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“Court fight begins over redrawing of Nevada voting districts”

Las Vegas Sun:

A court battle has begun over a League of Women Voters of Nevada effort to amend the state constitution to have an appointed commission, instead of the state Legislature, redraw congressional and legislative voting districts following the 2020 U.S. Census.

League President Sondra Cosgrove predicted Tuesday that a ballot initiative proposed to qualify for a statewide vote will withstand a lawsuit calling its wording inaccurate and misleading.

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Utah: “Electioneering Investigation Into San Juan County Clerk Complete. No Decision Yet To Prosecute.”

KUER:

In October, the ACLU raised concerns that Nielson had distributed a letter to the editor about the election to voters at some polling locations. Attempting to influence voters within a polling place is a crime under state law. 

“If the county is distributing information about the election, it should be unbiased, so it raises some serious concerns,” John Mejia, ACLU legal director for Utah, said at the time. 

Nielson confirmed to KUER that he distributed the letter at polling locations but said his intention was to educate voters. 

“It was a mistake — inadvertent. There wasn’t any intention to sway one way or another, just inform,” he said. 

Published in the San Juan Record, the letter advocated for the special election, which asked voters if the county should explore changing its form of government. It was written by Blanding Mayor Joe Lyman, who collected signatures to prompt the election.

Critics of the election said it was an attempt to unseat the county’s first majority Navajo commission, elected last year following a lawsuit that resulted in federal redistricting. In the letter, Lyman disputed those claims and advocated for a five-person commission.

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New DOJ Indictment Alleges Millions of Dollars in Foreign Money Illegally Funneled to Support Hillary Clinton in 2016

The indictment includes George Nader, who appears to have been seeking influence in both the Trump and Clinton campaigns (and is now being held on child pornography charges):

Earlier today, an indictment was unsealed against the CEO of an online payment processing company, and seven others, charging them with conspiring to make and conceal conduit and excessive campaign contributions, and related offenses, during the U.S. presidential election in 2016 and thereafter.


Assistant Attorney General Brian A. Benczkowski of the Justice Department’s Criminal Division and Assistant Director in Charge Timothy R. Slater of the FBI’s Washington Field Office made the announcement.
A federal grand jury in the District of Columbia indicted Ahmad “Andy” Khawaja, 48, of Los Angeles, California, on Nov. 7, 2019, along with George Nader, Roy Boulos, Rudy Dekermenjian, Mohammad “Moe” Diab, Rani El-Saadi, Stevan Hill and Thayne Whipple. The 53 count indictment charges Khawaja with two counts of conspiracy, three counts of making conduit contributions, three counts of causing excessive contributions, 13 counts of making false statements, 13 counts of causing false records to be filed, and one count of obstruction of a federal grand jury investigation. Nader is charged with conspiring with Khawaja to make conduit campaign contributions, and related offenses. Boulos, Dekermenjian, Diab, El-Saadi, Hill, and Whipple are charged with conspiring with Khawaja and each other to make conduit campaign contributions and conceal excessive contributions, and related offenses.


According to the indictment, from March 2016 through January 2017, Khawaja conspired with Nader to conceal the source of more than $3.5 million in campaign contributions, directed to political committees associated with a candidate for President of the United States in the 2016 election. By design, these contributions appeared to be in the names of Khawaja, his wife, and his company. In reality, they allegedly were funded by Nader. Khawaja and Nader allegedly made these contributions in an effort to gain influence with high-level political figures, including the candidate. As Khawaja and Nader arranged these payments, Nader allegedly reported to an official from a foreign government about his efforts to gain influence.


The indictment also alleges that, from March 2016 through 2018, Khawaja conspired with Boulos, Dekermenjian, Diab, El-Saadi, Hill, and Whipple to conceal Khawaja’s excessive contributions, which totaled more than $1.8 million, to various political committees. Among other things, these contributions allegedly allowed Khawaja to host a private fundraiser for a presidential candidate in 2016 and a private fundraising dinner for an elected official in 2018.


The indictment further alleges that, from June 2019 through July 2019, Khawaja obstructed a grand jury investigation of this matter in the District of Columbia. Knowing that a witness had been called to testify before the grand jury, Khawaja allegedly provided that witness with false information about Nader and his connection to Khawaja’s company. Boulos, Diab, Hill, and Whipple also are charged with obstructing the grand jury’s investigation by lying to the FBI.


Currently, Nader is in federal custody on other charges.

Here is a list of some of Khawaja’s contributions to Democrats in 2016 (via Open Secrets and Scott Stedman). It includes a $1 million donation to the main Democratic super PAC, Priorities USA.

I’m tweeting more about this here:

And more on Nader:

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“The Anti-Carolene Court and Gun Politics”

A very interesting post by Darrell Miller connecting ongoing Second Amendment debates to my forthcoming article, The Anti-Carolene Court.

Stephanopoulos, as a voting rights scholar, is most concerned with how judicial action (or inaction) aids partisan entrenchment rather than prevents it.  But his observations are also applicable to New York State Rifle & Pistol Association, Inc.  v. New York City  Everyone seems to agree that gun violence is a serious problem – even Justice Scalia recognized as much in his majority opinion in District of Columbia v. Heller.  But he went on to note that the Second Amendment takes “certain policy choices off the table.”   Political process theory, though, would say that how much the Second Amendment knocks off the table is a function of both the risks presented by gun violence and the risks of a policy over-reaction.

Gun rights advocates have gone to extraordinary lengths since Heller to depict themselves as targets of over-reaction, victims of a political process failure, and minorities in need of vigorous judicial protection.   Their self-description is a powerful organizational and rhetorical tool, but is difficult to square with political reality.   There has been an utter lack of political movement on even the most modest (and most popular) gun violence prevention legislation, like universal background checks.  Even back-to-back mass shootings in Texas and Ohio, and the most recent shooting in a California high school, have seemingly no effect on the political deadlock.  It seems extremely difficult to see how the political process is failing to prevent a policy over-reaction.

Miller’s post raises the question of what (if anything) political process theory has to say about constitutional provisions, like the Second Amendment, that endorse values completely unrelated to the structure and operation of democracy. John Hart Ely famously thought that such provisions don’t belong in a well-written constitution. Carolene Products also declined to apply its pro-democratic theory of judicial review to “legislation [that] appears on its face to be within a specific prohibition of the Constitution.”

It’s therefore fascinating, as Miller describes, that gun rights advocates are trying so hard to portray themselves as victims of a political process failure. If this were actually the case, it might be legally irrelevant because (per the above quote from Carolene Products) the Second Amendment isn’t a site for pro-democratic judicial review. Or, if political process theory does apply to the Second Amendment, the alleged powerlessness of gun rights advocates might support the invalidation of gun control legislation. On this account, judicial intervention could be based on both standard modalities of constitutional interpretation and a political process malfunction. Lastly, if political process theory is applicable here, but the political process isn’t misfiring with respect to gun control (or is misfiring in the opposite direction, in favor of gun rights advocates), then Carolene Products would counsel judicial restraint. Other modalities might still impel courts to intercede, but political process theory would press in the opposite direction.

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Small Donors and Political Polarization

I’ve published what I’m sure will be a controversial essay in the Yale Law Journal Forum on the small-donor revolution in campaign financing.  Up until now, reformers have characterized this development in glowing, unqualified terms: as a way to “reclaim” our republic, a development that “significantly enhance[s] the quality of democracy in the United States,” one that promises to “restore citizens to their rightful pre-eminent place in our democracy.”  That’s because advocates see small donations as serving the values of equality, anti-corruption, and increased political participation.

But there is strong evidence that small donors also fuel the ideologically more extreme tendencies, rather than the more centrist ones, in American politics.  The principal aim of this essay is to push for greater discussion and debate about this issue, which requires confronting potential tradeoffs between the equality, anti-corruption, and participation benefits of small-dollar contributions and their tendency to further fuel political polarization.  This essay also includes original analysis of the types of candidates who benefited most from small donations in the 2018 election cycle.

The question whether small-donor financing accentuates political polarization is particularly urgent because the most important campaign-finance reform proposals are now based on small-donor financing.  The election-reform bill the Democratic House passed as soon as it was seated, H.R. 1, includes a new campaign-finance system that would provide $6 in matching public funds for every $1 candidates for the House receive in small-dollar contributions (defined as contributions up to $200).  Thus, a $200 donation to a candidate for the House would be matched with $1200 in public funds.

I’ll include a brief initial excerpt, below, from this essay.  Given the importance of the pending H.R. 1 bill, I’ll do a couple subsequent posts with more specific concerns I want to flag about the particular choices H.R. 1 makes about how to structure a small-donor based system of campaign-finance reform.

From the essay:

In an initial flush of romantic enthusiasm, social media and the communications revolution were thought to herald a brave new world of empowered citizens and unmediated, participatory democracy. Yet just a few years later, we have shifted to dystopian anxiety about social media’s tendencies to fuel political polarization, reward extremism, encourage a culture of outrage, and generally contribute to the degradation of civic discourse about politics. But when it comes to the campaign-finance side of democracy, the internet and the communications revolution are still being celebrated as an unalloyed good. The time has come to ask harder questions about this disconnect between how we view the internet’s effects on public discourse and its effects on fundraising. . . .

Small-donor financing is part of the general trend toward using the communications revolution to bypass traditional intermediaries in politics and enhance direct modes of citizen participation. … Part I describes the ways in which the communications revolution is reshaping our privately financed campaign system. Part II then presents the evidence to date that suggests small donors tend to fuel more ideologically extreme candidates. Finally, Part III identifies specific aspects of H.R. 1’s design that ought to be discussed more widely. Put most broadly, the question posed here is whether the concerns that have emerged about the internet and democracy should suddenly disappear when it comes to fundraising, or whether we need to reflect more on how those same concerns might also apply to the internet’s empowerment of small donors. . . .

The design of a democratic system seeks to realize a number of different values. Most regulations of the political process, including those styled as political “reforms,” actually implicate tradeoffs and conflicts among these values. Yet the staunchest advocates of reform typically present their preferred reforms as unmitigated goods and frequently fail to recognize or confront the reality of these tradeoffs. Advocates so focused on the one dimension of a problem that most concerns them can develop tunnel vision that obscures the costs of their reforms along other dimensions of democracy. Small-donor financing has burst onto the national scene as a major force only in the last few years, which makes the current unbridled enthusiasm for it understandable but potentially troubling, to the extent we ignore the full range of consequences of turning it into the exclusive basis for using public funds to finance elections.

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Two Powerhouse Democratic Election Law Firms in California to Merge

Release via email:

California’s two leading political and government law firms – Olson, Hagel & Fishburn (“OHF”) and Remcho, Johansen & Purcell (“RJP”) – announced today that they are merging on January 1, 2020 to form the new law firm of Olson Remcho LLP.

The new firm will be a political powerhouse in California.  Among numerous other clients, Olson Remcho will represent the Governor, the Speaker of the Assembly, the Senate President pro Tempore, the California Democratic Party, dozens of labor organizations, and several members of the California Congressional Delegation.

With attorneys located in offices in Sacramento, Oakland and Long Beach, the new firm will include 22 attorneys when launched on January 1.  Olson Remcho attorneys will advise government agencies, nonprofits, unions, ballot measure committees, lobbyists, candidates, public officials, corporations, and political action committees regarding their participation in elections and government decision-making at the federal, state, and local levels.  

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Democrats Won’t Appeal in North Carolina Partisan Gerrymandering Case

News and Observer:

The plaintiffs, in a statement Monday night, said they won’t appeal the decision, citing the timeline for candidate filing and “the nature of today’s ruling.”


“After nearly a decade of voting in some of the most gerrymandered districts in the country, courts have put new maps in place that are an improvement over the status quo, but the people still deserve better,” said former attorney general Eric Holder in a statement. He is chairman of the National Democratic Redistricting Committee, which is backing the lawsuit in North Carolina and similar ones in other states.


Within just two weeks, if there weren’t maps in place, the state would have had to move the primary elections for Congress. Lawyers for the Republican defendants said that would have led to lower voter turnout and extra costs for local governments, and the judges later said avoiding such a delay was their primary concern.

See my earlier coverage, North Carolina State Court Will Not Redraw Congressional Districts for 2020: Did the Judges Bluff Their Way into Getting a Lessened Partisan Gerrymander?

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“Rep. Duncan Hunter says he will plead guilty in campaign finance scandal, leave Congress”

LA Times:

After years of denials and claims that he was the target of a political witch hunt, Rep. Duncan Hunter (R-Alpine) is scheduled to appear in federal court Tuesday morning to plead guilty in a sweeping campaign finance investigation.
The announcement was posted on the U.S. District Court docket Monday morning, then KUSI aired an interview with Hunter in which he said he would plead guilty to one of the 60 criminal charges against him. He suggested that he is likely to spend time in custody.
“The plea I accepted is misuse of my own campaign funds, of which I pled guilty to only one count,” Hunter told the station. “I think it’s important that people know that I did make mistakes. I did not properly monitor or account for my campaign money. I justify my plea with the understanding that I am responsible for my own campaign and my own campaign money.”
The reversal comes nearly six months after Hunter’s wife and former campaign manager, Margaret Hunter, admitted to
 her role in a widespread scheme that saw the couple allegedly spend more than $200,000 in campaign donations on family expenses like vacations,
 gas, groceries
school lunches
 and oral surgery. Such spending is prohibited to prevent undue influence by contributors.

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North Carolina State Court Will Not Redraw Congressional Districts for 2020: Did the Judges Bluff Their Way into Getting a Lessened Partisan Gerrymander?

I explore the implications in this thread, ending with the question whether the North Carolina Supreme Court will get involved to reverse despite the timing issue:

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Top Recent Downloads in Election Law on SSRN

Here:

LSN: Election Law & Voting Rights (Topic)

Recent Top Papers (60 days)

As of: 03 Oct 2019 – 02 Dec 2019

RankPaperDownloads
1.Why Trump Does Not Need the Popular Vote to Retain the White House in 2020
Christopher Zambakari
The Zambakari Advisory, LLCDate Posted: 14 Oct 2019
Last Revised: 14 Oct 2019
730
2.Hardball and/as Anti-Hardball
David Pozen
Columbia University – Law SchoolDate Posted: 27 Oct 2019
Last Revised: 27 Nov 2019
178
3.Why the Nineteenth Amendment Matters Today: A Citizen’s Guide for the Centennial
Neil Siegel
Duke University School of LawDate Posted: 02 Oct 2019
Last Revised: 24 Nov 2019
109
4.Our Campaign Finance Nationalism
Eugene D. Mazo
Rutgers Law SchoolDate Posted: 08 Nov 2019
Last Revised: 08 Nov 2019
54
5.The Signature of Gerrymandering in Rucho v. Common Cause
Andrew ChinGregory Herschlag and Jonathan Mattingly
University of North Carolina School of Law, Duke University and Duke UniversityDate Posted: 08 Nov 2019
Last Revised: 08 Nov 2019
47
6.Dirty Thinking about Law & Democracy in Rucho v. Common Cause
Guy-Uriel E. Charles and Luis E. Fuentes-Rohwer
Duke University School of Law and Indiana University Maurer School of LawDate Posted: 14 Oct 2019
Last Revised: 14 Nov 2019
42
7.Foreign Corruption of the Political Process Through Social Welfare Organizations
Norman I. Silber
Hofstra University School of LawDate Posted: 08 Oct 2019
Last Revised: 20 Nov 2019
38
8.Court-Packing and Democratic Erosion
Thomas M. Keck
Syracuse University – Maxwell School of Citizenship and Public AffairsDate Posted: 13 Nov 2019
Last Revised: 13 Nov 2019
38
9.First Amendment (Un)Exceptionalism: A Comparative Taxonomy of Campaign Finance Reform Proposals in the US and UK
Lori A. Ringhand
University of Georgia School of LawDate Posted: 28 Oct 2019
Last Revised: 05 Nov 2019
37
10.A Tax Lesson for Election Law
Ellen P. Aprill
Loyola Law School Los AngelesDate Posted: 28 Oct 2019
Last Revised: 28 Oct 2019
37


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“A Census Whodunit: Why Was the Citizenship Question Added?”

NYT:

But five months after the Supreme Court blocked the question, a steady trickle of new disclosures in the case this past month has sharpened questions about whether Republican Party politics drove the effort to add the question to the head count — and whether the Trump administration tried to conceal that in court.


The disclosures, in a House of Representatives inquiry and a New York lawsuit, bolster existing evidence that a Republican political strategist, Thomas B. Hofeller, played at least an indirect role in crafting a legal rationale for adding the question to the census. They also indicate that a senior Census Bureau official and friend of Mr. Hofeller, Christa Jones, helped draft an explanation of that rationale, apparently for publication had the question been approved.


Those developments could help efforts by critics to definitively pin down how the citizenship question became a Trump administration priority and whether Justice Department officials should be sanctioned for withholding evidence relating to it. Federal judges are hearing demands by the House Oversight and Reform Committee and by plaintiffs in the census lawsuit filed in New York to unseal a trove of census-related documents that the administration has refused to turn over.

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“Campaign finance system and election overhaul coming to New York”

NYDN:

The panel tasked with overhauling New York’s campaign finance laws and creating a public matching funds system from scratch released its final report Sunday evening — a day before it was due.


The report from the nine-member Public Campaign Financing Commission, created as part of the state budget after lawmakers failed to reach an agreement on the issue, offers an unprecedented revamping of the state’s election laws.

The commission chose to create an oversight committee under the umbrella of the state Board of Elections and to cap contributions for statewide races at $18,000, down from the $70,000 allowed under current law.
Donations for Assembly race will be capped at $5,000 and Senate races at $10,000.

For all races, only in-district donations of $250 or less will be matched. Candidates must return all matching funds from any donor who exceeds $250 in any election cycle. For statewide races, the match ratio is 6:1. For legislative races, the first $50 will be matched at a 12:1 ratio, the next $100 at 9:1 and the final $50 at 8:1.

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