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

Dave Levinthal for CPI:

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

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

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

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

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


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


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

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

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

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


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


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

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

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


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


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

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

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

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

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


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

Lawrence Journal-World:

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

Make of it what you wish.


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


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

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

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

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

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

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

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


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

Release from Texas Civil Rights Project:

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

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

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

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


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

Important Kira Lerner at Think Progress;

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

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

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

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

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


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

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

NEIL M. GORSUCH, Circuit Judge.

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

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

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

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

UPDATE: Richard Winger weighs in.


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


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

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

Here is a snippet from the article:

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

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


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

John Nichols for the Nation:

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

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

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


Trump: “Not the Republican people our that representatives are representing.”

From the transcript of today’s crazy news conference, President Trump said:

We’ve begun preparing to repeal and replace Obamacare. Obamacare is a disaster, folks. It is’s disaster. I know you can say, oh, Obamacare. I mean, they fill up our alleys with people that you wonder how they get there, but they are not the Republican people our that representatives are representing.

I thought representatives represent everyone in their area.


“Favoring the Press”

New draft paper by Sonja West that looks great (and explores some of the issues I did in Plutocrats United).  Here is the abstract:

In the 2010 case of Citizens United v. Federal Election Commission, the United States Supreme Court caught the nation’s attention by declaring that corporations have a First Amendment right to independently spend unlimited amounts of money in political campaigns. The Court rested its 5-4 decision in large part on a concept of speaker-based discrimination. In the Court’s words, “the Government may commit a constitutional wrong when by law it identifies certain preferred speakers.”

To drive home its point that speaker-based distinctions are inherently problematic, the Court focused on one type of speaker distinction—the treatment of news media corporations. The Court assumed that there is no constitutional difference between media corporations and other corporations and that if the government were able to limit the speech of some corporations, then it would also be free to censor the speech of media corporations. This was a thought that the majority called “dangerous, and unacceptable” and that Justice Antonin Scalia said “boggles the mind.” To the Citizens United majority, the news media corporation example settled the question on corporate speech rights, because any other rule would be unconstitutional speaker-based discrimination and open the doors for regulation of the news media.

But was the Citizens United Court correct about the media corporation dilemma? Is the government no more able to regulate the expressive activities of Exxon Mobil Corp. than it is of the New York Times Company? Must all speakers be treated uniformly whether or not they are members of the press? And does the Press Clause (and not just the Speech Clause) play a role in this analysis?

In this article, I push back on the claim that the First Amendment prohibits speaker-based classifications by the government. Rather than ban such distinctions, the Press Clause traditionally has worked in support of differential treatment for the press. History, court precedent and legislative practice, moreover, demonstrate how favoritism for press speakers has been condoned and often encouraged.

This debate over the meaning of the Press Clause could have significant ramifications. A jurisprudential drift of press rights away from a protection of core press functions and toward a constraint on the ability of the government to recognize the differing roles of press speakers could significantly threaten the vital structural safeguards of the Fourth Estate.


With Democratic Governor Silent, North Carolina Tees Up #SCOTUS Review of Its Strict Voting Law

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

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

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


“‘Soft Money’ Case a Test for Trump, Supreme Court”

Bloomberg BNA:

A filing due next month in a key Supreme Court case could provide the first indication of whether the Trump administration will seek to uphold or challenge longstanding campaign finance laws that restrict unlimited “soft money” contributions to political parties (Republican Party of Louisiana v. Federal Election Commission, U.S., No. 16-865, jurisdictional statement filed 1/6/17).
The Supreme Court has set a deadline of March 13 for the Justice Department to file a response to a jurisdictional statement seeking review of a lower-court decision upholding current Federal Election Commission limits on party soft money. The response is expected to be filed on behalf of the FEC by the Office of U.S. Solicitor General, now headed by Acting Solicitor General Noel Francisco.
President Donald Trump hasn’t yet named a permanent Solicitor General, the top DOJ official in charge of representing the government before the Supreme Court. Whoever is nominated would have to be confirmed by the Senate, making it unlikely that the new solicitor general will be in place by the time the government’s response to the soft-money challenge is due.
Francisco, who’s currently holding the job came from the law firm Jones Day, where he represented former Virginia Gov. Robert McDonnell (R) before the Supreme Court in a major corruption case decided last year. The high court sided with McDonnell in that case and overturned his conviction related to accepting gifts from a Virginia businessman.

“Where Were Out-of-State IDs Used to Vote in New Hampshire Last November?”

Very interesting data from NHPR:

In the 2016 general election, according to the Secretary of State’s office, Election Day registrants of all kinds made up about 11 percent of all ballots cast. Within that, first-time New Hampshire voters made up 6 percent of all votes in November — and, within that, first-time voters who registered without a New Hampshire driver’s license made up less than one percent.

When people talk about the potential for “voter fraud” in New Hampshire, they often point to the idea that the state allows people to register on Election Day and to use out-of-state licenses. But that alone doesn’t mean those voters are doing anything illegal.

There are reasons why someone might legitimately register to vote with an out-of-state license – most obviously, they could have moved to the state recently or could be attending college here. (The state makes clear that out-of-state students attending college in New Hampshire are allowed to vote here, as long as they aren’t also voting in another state.)

To register with an out-of-state license, you still have to prove that you hold domicile in the state – using a utility bill or lease, for example, or by signing an affidavit affirming you actually live where you’re trying to vote. See here for more details on what’s required for first-time voters to register in New Hampshire.

According to the data provided by the Secretary of State’s office, 5,903 people newly registered to vote in New Hampshire using an out-of-state license on the day of the last election.

Related: Bill aims to close voting ‘domicile loophole’ in election law.


“Feds urge Supreme Court to turn down Menendez appeal in bribery case”


The federal bribery charges against U.S. Sen. Robert Menendez in no way intrude on legislative activity protected by the Constitution’s speech-or-debate clause, the Justice Department said this week, urging the Supreme Court not to take up the lawmaker’s appeal….

Petitioner has not cited any decision, by any court, holding that the Clause protects conduct like that alleged here,” several solicitors general wrote in a brief filed on Monday. “Instead, he contends … that the court of appeals erred by examining the ‘purpose’ or ‘motive’ of his lobbying. But the court conducted that inquiry only because it adopted petitioner’s view that the Speech or Debate Clause protects efforts to lobby the Executive Branch if those efforts are aimed at ‘policy’ rather than a particular case.”

I don’t think they meant “several solicitors general”


“Do voter identification laws suppress minority voting? Yes. We did the research”

Zoltan L. Hajnal, Nazita Lajevardi and Lindsay Nielson for The Monkey Cage:

When we compare overall turnout in states with strict ID laws to turnout in states without these laws, we find no significant difference. That pattern matches with most existing studies. But when we dig deeper and look specifically at racial and ethnic minority turnout, we see a significant drop in minority participation when and where these laws are implemented.

Hispanics are affected the most: Turnout is 7.1 percentage points lower in general elections and 5.3 points lower in primaries in strict ID states than it is in other states. Strict ID laws mean lower African American, Asian American and multiracial American turnout as well. White turnout is largely unaffected.

These laws have a disproportionate effect on minorities, which is exactly what you would expect given that members of racial and ethnic minorities are less apt to have valid photo ID.


“Responses to a Pence Commission on Voter Fraud”

Important Bauer on how election administration experts should respond to the Pence Commission:

This leaves members of this community with a couple of choices.

One is declining to participate: no testimony, no written submissions. The Commission will want to say that it consulted experts around the country. It will be useful in limiting the harms of this project to show that this is not true. By refusing to support the inquiry, community members will be protected against the linkage of their names to the Commission’s work, a connection accomplished by the mere fact of their showing up.

Or now, prior to the institution of the Commission, members of this same community can respectfully and publicly request that the Administration reconsider this ill-fated venture. If the President or Vice President or Stephen Miller, or all, are worried about the quality of electoral administration, they can support the reform program now in progress in state and local governments, supported by nonpartisan nonprofit organizations. Miller seemed entirely unaware of this work in his remarks on ABC about inaccurate voter registration records, and this is not the only part of the story he is uninformed about. Experts around the country can tell that story, the whole story,in disputing the premise of the proposed Commission.

This public case may not be successful in giving the Administration pause. But it would at least help to shape public judgment of the Commission’s purposes and legitimacy; it would become an indispensable part of its history. And it is the only contribution to that history that experts and officials with names to protect and a serious job to do would want to have anything to do with writing.


Gerrymandering and partisan composition of Congress (cont.)

At Rick (Hasen)’s request, I wanted to add just a bit to Rick (Pildes)’s original post on the new paper by Jowei Chen and David Cottrell, proposing a means to assess the net partisan consequences of congressional redistricting.

Given the inevitable shorthand descriptions of the paper in the media, a few short suggestions:

Most important, this paper does not mean that the benefits and detriments of the status quo are basically a wash.   (Though some might draw that conclusion from the summary, I also don’t think that’s the implication that either Rick or the original authors would draw.)  More on why, below the cut.

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“N.J. Dems want to push future presidents to do what Trump wouldn’t: Release tax returns”


If President Trump, or anyone else, wants to get on the New Jersey ballot to run for president in 2020, he could have to release his tax returns, if some Democratic lawmakers have their way.

Whether legislators have that power was an open question Monday, as the Assembly Judiciary Committee advanced a bill that would require candidates for president and vice president to disclose their federal income tax returns in order to appear on the state’s ballot.


“Grand Prairie mom who got eight years: ‘I just wanted to vote and be part of it’”

Fort Worth Star-Telegram:

“I thought I was doing something right for my country. When they gave me the sentence they just broke my heart, and they didn’t just break my heart, but I already knew my family was going to be broken, my kids especially,” Ortega said Monday during an interview at the jail, where she will remain for about a month until being transported to a Texas Department of Criminal Justice facility. “To me, it’s like, ‘Wow, I can’t believe this. I just can’t.’ 

As a green-card holder, Ortega says she never thought she couldn’t vote. While a resident of Dallas County, Ortega received a voter card after providing a valid driver’s license and Social Security card and being approved through the state process, according to Toni Pippins-Poole, the Dallas County elections administrator.

Watch the video interview. This woman should be punished, but eight years for what appears to be a stupid mistake?  Especially when Ethan Couch, the drunk driving killer who claimed “affluenza” in Texas got a SUSPENDED sentence.

“Demos and Project Vote team with Hogan Lovells to Help Prevent Unlawful Voter Purge in Philadelphia”


Today, voting rights groups Demos and Project Vote urged a federal appeals court to uphold a decision dismissing an attempt by the so-called “American Civil Rights Union” (ACRU) to force the City of Philadelphia to conduct an unnecessary purge of its voter rolls. In an amicus curiae brief prepared by the law firm Hogan Lovells, filed in the Third Circuit Court of Appeals, the groups argue that ACRU’s attempt to turn the National Voter Registration Act (NVRA) on its head, to force a voter purge targeting people with felony convictions, is legally untenable and will result in countless eligible Philadelphia voters being disenfranchised.


“Purge outdated voter rolls? NYC tried it, with bad results”


Whether or not you believe that voting fraud is a problem in the U.S., one thing is certain: Tidying up outdated voter rolls is sometimes easier said than done. Just ask election officials in the nation’s largest city.

After an independent review found that New York City’s voting lists contained people who were dead or in prison, elections officials began an aggressive purge in 2014 and 2015 that eliminated more than 200,000 supposedly invalid registrations.

The result? A record number of complaints during the 2016 presidential primary from legal voters who turned up to cast a ballot, but found that they were no longer registered.

 “Democracy itself is under attack,” New York Attorney General Eric Schneiderman, a Democrat, declared last week after announcing plans to join a federal lawsuit over the way the purge was handled.

New York City’s bungled purge offers a cautionary tale for elected officials, led by President Donald Trump, who warn that inaccurate voter rolls are leading to voter fraud across America.


“The Latest Voter-Fraud Lie”

NYT editorial:

“It is a fact and you will not deny it.”

That unnerving remark — made on Sunday by Stephen Miller, a senior policy adviser to President Trump — sums up the new administration’s attitude toward the truth: We Decide, You Report.

Mr. Miller made the comment at the end of a heated back-and-forth with ABC’s George Stephanopoulos, who had asked him to defend Mr. Trump’s latest claim of voter fraud — that his narrow loss in New Hampshire was due to voters who had been bused in illegally from Massachusetts. When Mr. Stephanopoulos pressed him for even a single example of fraud, Mr. Miller responded: “George, go to New Hampshire. Talk to anybody who has worked in politics there for a long time.”


“National Civil Rights Organization Mounts First Major Federal Voting Rights Lawsuit of 2017 in North Carolina”


 A federal voting rights lawsuit challenging the election scheme in a North Carolina county was filed today in the United States District Court for the Eastern District of North Carolina

The complaint was brought on behalf of voters in Jones County, North Carolina by the Lawyers’ Committee for Civil Rights Under Law, along with law firms Cleary Gottlieb Steen & Hamilton LLP and Patterson Harkavy LLP.  The lawsuit alleges that the county’s method of electing its Board of Commissioners—the five-member body that makes critical and wide-ranging decisions impacting Jones County residents—dilutes the voting strength of its African American voters, in violation of Section 2 of the Voting Rights Act.  Because the county employs an “at-large” system, all Commissioners are elected county-wide.  In Jones County, voting remains racially polarized and white voters historically vote as a bloc to defeat candidates of choice supported by the African American community.  As a result, African American voters have not been able to elect a candidate of their choice to the Board of Commissioners since 1994, though they comprise nearly a third of the county’s voting-age population.  The result, according to the complaint, is the “systemic neglect” of the needs of African Americans in Jones County.


“Business Roundtable softening stance on political transparency?”


In 2013, the Business Roundtable — a nonprofit trade association for the nation’s leading CEOs and one of the country’s most powerful lobbying forces — made clear its stance on corporate political transparency.

“Corporations do NOT support increased political and lobbying ‘disclosure,’” then-Business Roundtable President John Engler declared to Fortune 500 business leaders in a letter co-signed by U.S. Chamber of Commerce President and CEO Tom Donohue and National Association of Manufacturers President and CEO Jay Timmons.

But the Business Roundtable’s hard line on corporations volunteering information about their political activities appears to have blurred — at least a bit.

In its latest “Principles of Corporate Governance” report, the Business Roundtable encourages corporate members to decide for themselves whether to publicly disclose political activities, such as contributing cash to so-called “dark money” nonprofit groups that aim to influence elections without revealing who funds them.