“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.


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.


“Indictment Details How Emirates Sought Influence in 2016 Campaign”


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.


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.


“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.


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


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?” 


“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.


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.)


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


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.


“Prominent Political Donors Charged in Campaign Finance Scheme”


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.


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


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.


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.


“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.


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


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.


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:


“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.


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.


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.  


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?


“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.


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:


Top Recent Downloads in Election Law on SSRN


LSN: Election Law & Voting Rights (Topic)

Recent Top Papers (60 days)

As of: 03 Oct 2019 – 02 Dec 2019

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
2.Hardball and/as Anti-Hardball
David Pozen
Columbia University – Law SchoolDate Posted: 27 Oct 2019
Last Revised: 27 Nov 2019
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
4.Our Campaign Finance Nationalism
Eugene D. Mazo
Rutgers Law SchoolDate Posted: 08 Nov 2019
Last Revised: 08 Nov 2019
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
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
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
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
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
10.A Tax Lesson for Election Law
Ellen P. Aprill
Loyola Law School Los AngelesDate Posted: 28 Oct 2019
Last Revised: 28 Oct 2019


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


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.


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


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.


Today’s Must-Read: “A Pennsylvania County’s Election Day Nightmare Underscores Voting Machine Concerns”


It was a few minutes after the polls closed here on Election Day when panic began to spread through the county election offices.
Vote totals in a Northampton County judge’s race showed one candidate, Abe Kassis, a Democrat, had just 164 votes out of 55,000 ballots across more than 100 precincts. Some machines reported zero votes for him. In a county with the ability to vote for a straight-party ticket, one candidate’s zero votes was a near statistical impossibility. Something had gone quite wrong.

Lee Snover, the chairwoman of the county Republicans, said her anxiety began to pick up at 9:30 p.m. on Nov. 5. She had trouble getting someone from the election office on the phone. When she eventually got through, she said: “I’m coming down there and you better let me in.”

With clearly faulty results in at least the judge’s election, officials began counting the paper backup ballots generated by the same machines. The paper ballots showed Mr. Kassis winning narrowly, 26,142 to 25,137, over his opponent, the Republican Victor Scomillio.

A spotlight on the people reshaping our politics. A conversation with voters across the country. And a guiding hand through the endless news cycle, telling you what you really need to know.


Native American Voting Rights Group Settles with Arizona Over Ballot Litigation

Turtle Talk:

Here are the materials in Navajo Nation, et al. v. Reagan, et al. No. CV-18-08329-PCT-DWL (Ariz. D. Ct. 2019).
The Amended Complaint sought:
[D]eclaratory and injunctive relief, compelling the Defendants to (a) allow early voters who do not sign their ballot affidavit to have the same opportunity to cure the ballot deficiency that is provided to voters with a mismatched signature, (b) allow early voters who do not sign their ballot affidavit to have the same chance to cure their ballot as voters who vote by conditional provisional ballots, (c) provide translators certified as proficient in the Navajo language for all future early voting and election-day polling sites, (d) provide translation of instructions for casting an early ballot in Navajo over the radio for the 30 days leading up to an election, (e) establish additional in-person voter registration sites, and (f) establish additional early voting sites on the Reservation for all future elections that are open for consistent hours (at a minimum, each Monday through Friday from 8 a.m. until 6 p.m. with no interruption during the lunch hour) during the 30 days leading up to the election. This relief is sought on the grounds that failure to provide the requested relief is a denial of the equal right to vote.
The lawsuit was settled, and the Settlements can be seen here:
Order and Apache County Settlement
Order and Secretary of State Settlement
Order and Coconino County Settlement
Order and Navajo County Settlement


“McCrory allies wrongly accused voters of fraud, but does the law protect them?”

News & Observer:

McCrory is not one of the people being sued for libel.

The case is against some of his 2016 supporters. They falsely accused several dozen North Carolinians of voting illegally, although only a handful of those voters are suing.

The lawsuit targets the Washington, D.C., law firm Holtzman Vogel Josefiak Torchinsky and its lawyers who worked on McCrory’s post-election push. Also being sued are McCrory’s legal defense fund — which records show has just $2,000 left in the bank — that allowed him to raise and spend money on the complaints separately from his campaign fund, and William Clark Porter IV, a Republican official from Guilford County where most of the plaintiffs in the lawsuit also live.
The voters have said they will leave it up to a trial to determine exactly how much money they should be paid by the various defendants, but they believe it should be more than $25,000. Meanwhile, their accusers say there’s no proof they committed libel or engaged in any sort of conspiracy.

Neither side in the 2016 libel case disputes the central fact that the voters were indeed wrongfully accused. Those false accusations were that they illegally voted multiple times, or illegally voted as a felon.

The main arguments in this case, then, are legal ones: Does the law allow voters to win damages from people who wrongfully accused them of voting illegally? Or does the law protect their accusers, since they sent the claims to state officials whose job it is to investigate such allegations? And aside from the libel claims, how much evidence do you need to prove anyone conspired against the voters who were falsely accused?
“A conspiracy cannot be based solely on suspicion and conjecture, and that’s all they offer in terms of their arguments,” said Craig Schauer, one of the attorneys for the defendants, in court Wednesday.

One of the legal questions boils down to just how serious it is for a person to be accused of voter fraud. The voters say they suffered sleepless nights, ridicule in their communities and damage to their reputations.
And voter fraud is certainly a crime. But is it an “infamous” crime? They’re trying to prove that, and one of the arguments from the GOP side is that “infamous” crimes refer to much more serious offenses, like murder or treason.

There’s also disagreement over how relevant or necessary the statements from McCrory’s recount team were to the state’s investigation of the election complaints. Millen said the McCrory team made at least five false statements about his clients, none of which were actually necessary to file an election protest, “yet they’re all there.”


“National Democratic groups sue Minnesota over ballot rules”

Star Tribune:

Two national campaign committees supporting congressional Democrats have filed a federal lawsuit challenging ballot order rules that will list DFL candidates in Minnesota beneath their major-party rivals in the 2020 general election.
The complaint, filed in U.S. District Court Wednesday by the Democratic Senatorial Campaign Committee, the Democratic Congressional Campaign Committee and two state voters, argues that the current system “creates an unlevel playing field in Minnesota’s elections by arbitrarily favoring” candidates based on their political affiliation.
“No party should benefit from an unfair advantage or be penalized because of a systemic disadvantage in our elections,” Sen. Catherine Cortez Masto, a Nevada Democrat who chairs the DSCC, said in a statement.
Under current law, major party candidates for partisan races are listed on the ballot based on the average number of votes their party won in the last election, with nominees from the party that received the most votes appearing last.
In the past, those rules meant only that the DFL and the Minnesota Republican Party rotated in the two top slots. But two new political affiliations — the Grassroots-Legalize Cannabis Party and Legal Marijuana Now Party — secured “major party” status after winning 5% of the vote in statewide races in 2018. Because their candidates received far fewer votes than the DFL or Republican nominees, state ballots are set to list their nominees first next year.


“House Committee Sues Barr and Ross Over 2020 Census Documents”


The House Oversight and Reform Committee on Tuesday sued William P. Barr, the attorney general, and Wilbur L. Ross Jr., the commerce secretary, for refusing to produce subpoenaed documents regarding President Trump’s failed attempt to add a citizenship question to the 2020 census.

The lawsuit, filed in the United States District Court for the District of Columbia, is an escalation of a monthslong dispute over the panel’s efforts to investigate the Trump administration’s effort to alter the decennial survey to ask 2020 respondents whether they are citizens. The government abandoned that effort after the Supreme Court in June blocked the question from being added, rejecting the administration’s stated reason for the effort as “contrived.”…

House Democrats have continued to investigate the census matter, arguing that they need to determine whether Congress should enact legislation to prevent the administration from employing similar tactics in the future. Democrats believe that the documents will show that the administration’s stated rationale for collecting the data — to better enforce the Voting Rights Act — was a cover story invented to mask a politically motivated attempt to diminish Democratic power by discouraging noncitizens from completing the survey. States rely on raw population data, rather than eligible voters, to draw House districts and to determine access to federal social welfare programs.


“Texas Democrats hit state with another lawsuit over new ban on temporary voting sites”

Dallas Morning News:

Former Austin Assistant City Manager Terrell Blodgett and Texas’ Young Democrats and College Democrats filed a lawsuit Tuesday seeking to overturn House Bill 1888, claiming it suppresses the vote of marginalized communities….

The Texas Democratic Party and the party’s Senate and U.S. House campaign arms also filed a lawsuit to block the law in October, alleging that it was an attempt to suppress young voters, whose turnout surged in 2018.

The bill, passed during this year’s legislative session, requires polling places to remain open all 12 days of early voting. County election officials can no longer set up temporary or “mobile” polls for one or two days at places such as hospitals, schools or college campuses unless they host a permanent site.

Friendswood Republican Rep. Greg Bonnen, the bill’s author, has said it’s intended to prevent the “selective harvesting of targeted voters” that critics say occurs when elections officials have the discretion to choose where to place polling sites. Bonnen and the secretary of state could not immediately be reached for comment.


“Misinformation Efforts Over Kentucky Vote Could Be Playbook for 2020”

Doozy from Jessica Huseman:

The personality, whose real name is Terpsichore Lindeman, alleged that somehow she and her husband had wound up as registered Democrats in Kentucky, which she saw as a sure sign that Andy Beshear, the Democratic attorney general ultimately declared the winner of the race for governor, had been manipulating the voter rolls.

Lindeman said that she is not a Democrat, and that she had her name removed from the rolls when she and her husband left the state years ago. Indeed, she said her husband is not a U.S. citizen and should not have been on any voting roll.

The claims gained no small degree of exposure. Lindeman’s dozens of tweets on the matter were retweeted hundreds of times. InfoWars, the conspiracy theory website, repeated her claims in multiple articles over a series of days. The website of the far-right activist Laura Loomer featured the story prominently. The Kentucky State Board of Elections received calls from alarmed voters, all while incumbent Republican Gov. Matt Bevin — who’d lost the election — talked darkly, but without specifics, about “irregularities” on Election Day.

ProPublica decided to check out Lindeman’s claims, and none add up, falling apart in the face of routine checks of public records. Still, experts say the disinformation spread by Lindeman in Kentucky and the virality and confusion that ensued is a peek into what could befall voters in 2020, when similar techniques are expected to be part of the arsenal of both the right and the left….

Debunking Lindeman’s claims starts with her and her husband’s voter registration information, which are public records. Their Kentucky registration forms show that both checked the box for Democrat when they registered to vote in Fayette County in 2008. Her husband, who Lindeman claims is not a citizen, also signed the form in 2008, which requires signers to attest they are a U.S. citizen. Lying on the form carries a penalty of fines or jail time of up to 12 months. The couple, records show, have never removed themselves from the rolls or changed their registration status until Nov. 8 of this year, which is when she began tweeting.


John Gore’s Ostensibly Faulty Memory Now at Issue in Litigation Over Pence-Kobach Commission (in Addition to Census Case)

Tierney Sneed for TPM:

The apparent memory problems of a former Trump Justice Department appointee have continued to haunt the department since the official left the administration.

Last week, in two separate cases, the Justice Department had to tell courts that the former official, John Gore, had issues remembering key communications related to the disputes in front of the judges.
One of those cases is the lawsuit that was brought against the census citizenship question, where the ACLU is seeking sanctions against the administration for allegedly withholding evidence in the case. The Justice Department in a Friday filing said that Gore had “no recollection” of texts sent to him that were related to the failed push to add the question to the census.

And in a separate case, arising from the now-disbanded Trump voter fraud commission, the Justice Department had to “correct” a declaration previously filed by Gore. According to the DOJ’s new filing, Gore now no longer remembers when he first came into contact with a GOP operative who was seeking that the commission investigate alleged voter fraud in Chicago. Gore also didn’t remember an email thread with another DOJ official and the White House referencing the operative.

Two Senate Judiciary Democrats have seized on the developments in both cases to renew their push for the DOJ Office of Professional Responsibility to review Gore’s conduct. In a new letter Monday, Sens. Sheldon Whitehouse (D-RI) and Patrick Leahy (D-VT) said the census citizenship case development “casts further doubt on Mr. Gore’s credibility.” They also argued that the corrected declaration in the voter fraud commission case was “relevant” to OPR’s review.


Republicans Plan for Misleading Websites in Upcoming Texas Elections

Dallas Morning News:

In a bizarre political blunder, a document laying out the Republican Party of Texas’s election strategy for the 2020 elections has ended up in the hands of Texas Democrats. Attacking Democratic candidates through websites and mitigating “the polarizing nature” of President Donald Trump are part of the plan.

The document — called a draft for initial discussion by the Texas GOP Party chair — was titled “Primary/General Election 2020 [Draft]” and began showing up in Democratic emails Monday evening….

“Starting after the Primary, the RPT will generate microsites for negative hits against the Democrat candidates in our twelve target race—we expect each microsite to be roughly $500,” the document reads. “We will then begin rolling out these websites, prioritizing the races that were within 4% in the 2018 election.”…

The document lays out a plan to purchase online domain names affiliated with the names of Democratic candidates so that Republicans can reroute them to the negative attack websites.

“For example, we will purchase ZwienerforTexas.comZwienerforTX.com, and so on,” the document reads.

Democratic Rep. Erin Zwiener of Driftwood is among the other six House members on the list. The others are Reps. Vikki Goodwin and John Bucy of Austin, James Talarico of Round Rock, Gina Calanni of Katy and Jon Rosenthal of Houston.

The document says Republicans will audit search engine optimization results to make sure that the negative attack websites are on the front pages of various search engines and work with other stakeholders — such as Texans for Greg Abbott, the governor’s campaign arm — “to get any more insight on issues that matter to these districts.”


“National Democrats approve early caucus voting for Nevada”


The Democratic National Committee has approved a plan by Nevada Democrats to offer the first-ever early voting option for presidential caucuses, a change stemming from a push to make the in-person presidential nominating meetings more accessible.

The state party’s chairman, William McCurdy II, and the DNC chairman, Tom Perez, intend to hold a conference call on Monday to announce the approval of the plan, the party confirmed.

Besides offering four days of early voting, Nevada’s plan calls for releasing raw vote totals from the caucus, offering caucus materials in Tagalog for the state’s growing Filipino population and having caucus workers use an app instead of paper to record and transmit results to party officials.


Senator John Kennedy Backs Away from Ridiculous Statement That Ukraine Not Russia Interfered in 2016 Elections



“Benson appoints new elections head to replace outgoing director”

Detroit News:

Secretary of State Jocelyn Benson has elevated her legal policy director to become Michigan’s next elections director. 

Jonathan Brater will replace Director Sally Williams when she retires at the end of the year, Benson said in a Monday statement.

He is also the former counsel the Brennan Center for Justice’s Democracy Program, a liberal group at New York University. At the Brennan Center, he focused on “modernizing elections in partnership with secretaries of state around the country,” Benson’s office said.

Brater, the department’s legal policy director, has worked alongside Williams since Benson, a Democrat, appointed him early this year. He is former executive editor of the University of Michigan’s Michigan Law Review. 


“Judge: Michigan GOP redistricting challenges unlikely to succeed”; 46-Page Opinion Available

Detroit News:

Groups hoping to upend Michigan’s new redistricting commission faced a setback as a judge said they weren’t likely to succeed in arguing the commission violated their constitutional rights.

U.S. District Court Judge Janet Neff denied the Republican groups’ push for an immediate pause on the redistricting commission and countered their arguments that certain conditions for serving on the commission were unconstitutional.

Those conditions ban political party officials, lobbyists, consultants and their relatives from being on the commission that will begin drawing Michigan’s legislative district lines after the 2020 election.

“The eligibility provisions at issue do not impose severe burdens on plaintiffs’ First Amendment rights,” Neff wrote in her opinion released Monday. “There is no right to state office or appointment.”

This is no surprise (the only surprise is why the Republicans did not raise the stronger argument about the meaning of “Legislature.”)

You can find the district court’s 46-page opinion at this link.


“How Bernie’s Small Donors Are Making Credit Card Companies Rich”


“It’s important that people realize that the more transactions they engage in, the more credit card companies are making money,” said Jonathan Zucker, the co-founder of Democracy Engine and former CEO of ActBlue, the nonprofit payment-processing behemoth catering to Democratic campaigns. “While it may only be a matter of cents, those pennies pile up.”

A Newsy analysis of Federal Election Commission data found that since the start of the 2008 election cycle, federal political campaigns have paid more than $220 million to credit card-processing companies including American Express, Bank of America and PayPal, among dozens of others.
Between the 2008 and 2016 election cycles, the amount nearly doubled, from $28.2 million to $51.5 million. The 2020 cycle is on pace to shatter that record: Through October, the 2020 campaigns spent more than $23.8 million in processing fees—more than a year before the election.