“Shouldn’t It Be Up to the Voters?”

Jerry Goldfeder:

In short, the central question is whether voters should retain the choice of voting for a candidate with a checkered past, or even a “carpetbagger.” One of our nation’s illustrious founders, John Adams, when composing the Massachusetts constitution in 1780, started the trend of residency requirements, bucking the existing standard exemplified by New York’s 1777 constitution, which required only that gubernatorial candidates be “wise and discreet.” See J. Goldfeder, “A period of adjustment: Have residency requirements for governors overstayed their welcome?” Albany Times Union, Sept. 14, 2014. It was up to New York voters to decide if a candidate satisfied that standard. The voters of Lackawanna’s First Ward knew full well about Mohamed Albanna’s criminal past. They were familiar with the details of his wrongdoing, and knew he had been imprisoned. J.K. Radlich, “He did 5 years in federal prison, now wants 4 years on Lackawanna council,” The Buffalo News, June 7, 2017. Nevertheless, a majority voted for him to serve as their Councilman. Shouldn’t the voters’ choice outweigh imposed standards that restrict eligible candidates?


“Philadelphia-Area Political Consultant Charged in Superseding Indictment With Obstructing Investigation of Federal Election Commission”

DOJ Release:

A federal grand jury sitting in the Eastern District of Pennsylvania returned a superseding indictment today adding charges in a pending criminal case against a Philadelphia-area political consultant, announced Acting Assistant Attorney General John P. Cronan of the Justice Department’s Criminal Division and U.S. Attorney Louis D. Lappen for the Eastern District of Pennsylvania.

The original indictmenz, returned on Oct. 24, 2017, charged Kenneth Smukler, 57, of Villanova, Pennsylvania, with causing unlawful campaign contributions, causing the filing of false reports to the Federal Election Commission (FEC), and causing false statements to the Federal Election Commission in connection with a 2012 congressional campaign.  The superseding indictment charges Smukler with these same offenses, as well as making conduit contributions to a federal campaign committee and obstructing an FEC investigation in connection with the 2014 congressional campaign of a different candidate.

According to the indictment, Smukler made and caused to be made excess and conduit contributions and engaged in a falsification and obstruction scheme involving a candidate for the Democratic Party’s nomination for Member of the U.S. House of Representatives in 2014.  According to the indictment, the excess contributions came from associates of Smukler and were funneled through two of Smukler’s consulting companies.  The conduit contributions were routed through another political consultant and the candidate.


“Pa. Republican state legislator moves to impeach four state Supreme Court justice”

Philly Inquirer:

One day after federal courts declined to block the new congressional map from taking effect, a Republican state representative introduced resolutions to impeach the four Democrats on Pennsylvania’s Supreme Court who ruled to impose the map in time for the May 15 primary.

The justices, along with fellow Democrat Max Baer, voted to strike down the old map of congressional districts, ruling they were unconstitutionally drawn to favor Republicans. But a second vote by the four imposed a new map for the May 15 primary. Baer dissented on that second plank in the ruling; Republican Justices Sallie Updyke Mundy and Thomas Saylor dissented on both decisions.


Out Today: My New Book on Justice Scalia’s Legacy; Later Today: Adam Winkler and I Discuss (Livestream Available) the Supreme Court’s Past, Present, and Future

My new book, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption is out today from Yale University Press. You can order the book at Amazon here ( Kindle version, Audiobook from Audible).

Tonight I’ll be doing an event at UC Irvine to be livestreamed with Adam Winkler talking about my book and his excellent new book, We the Corporations.   This weekend C-SPAN Book TV will feature a panel about my book with Adam Liptak and Prof. Sue Bloch of Georgetown, and here’s a video of a recent NYU Brennan Center talk with CNN’s Joan Biskupic.


I just did this Q & A about the book with Ron Collins over at SCOTUSBlog.

Here are three pieces I’ve written related to the book, with more on the way:

Antonin Scalia’s disruption of the Supreme Court’s ways is here to stayWashington Post, Feb. 13, 2017

Stop treating Ruth Bader Ginsburg — a.k.a. ‘Notorious R.B.G.’ — like a celebrityL.A. Times, Feb. 15, 2017

In Pair of of Opinions, Fight Over Textualism Lives OnNational Law Journal, Feb. 22, 2018

Free Speech vs. Freedom from IntimidationSlate, Feb. 28, 2017

There’s one early review, from Kirkus Reviews, which writes that “Hasen effectively supports his critique with incisive analysis of pertinent cases and legal commentary, clearly explaining the fundamental theoretical and practical weaknesses of” Scalia’s approach.

Here are some book blurbs:

“Like a Scalia opinion, The Justice of Contradictions is superbly written, filled with brilliant insights and unsparing in its analysis. Both liberals and conservatives will see Scalia and his legacy in a new and more illuminating light.”—Adam Winkler, author of Gunfight: The Battle Over the Right to Bear Arms in America

“Rick Hasen uses his powerful analytic ability to point out the numerous contradictions and inconsistencies in Scalia’s jurisprudence. Any serious student of the Supreme Court will find much to admire, and something to disagree with, in this important book.”—Burt Neuborne, author of Madison’s Music: On Reading the First Amendment


“A brilliant analysis of Justice Antonin Scalia’s work.   This clearly written and accessible book will be an essential resource for all thinking about Scalia’s place in history and the last three decades of American law.”—Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley, School of Law


“An accessible and insightful account of Antonin Scalia, one of the Supreme Court’s most colorful, controversial, and iconoclastic justices.  Hasen delivers a nuanced appreciation of a brilliant man whose many internal contradictions undermined his own potential for influence on the Court—even as he profoundly shaped the way we think and argue about constitutional law today.”—David Cole, National Legal Director, ACLU, and author of Engines of Liberty: How Citizen Movements Succeed


“Antonin Scalia was one of the most consequential and controversial justices in the history of the Supreme Court. Rick Hasen has given us a masterpiece on his jurisprudence and his personality—sophisticated but accessible, insightful and penetrating. A must-read for anyone interested in the Court and its impact on society.”—Norman Ornstein, resident scholar, American Enterprise Institute


ACLU Wins Voting Rights Act Section 2 Suit in Sumter County, Georgia


A federal court in Albany agreed with the ACLU Voting Rights Project,  the Law Office of Bryan L. Sells, and the ACLU of Georgia, that the Sumter County Board of Elections and Registration’s current school board district lines are unfair to African-Americans, who are 54% of the county’s population.

On Saturday, the court ruled that the current at-large method of voting for the county’s public education school board members disproportionately favored the white majority candidates over the black minority preferred candidates. Reverend Matt Wright, Jr., the plaintiff, brought the lawsuit against the county to change the at-large method of voting so that the African American community would have a fair chance to elect their candidate of choice to a seat on the public education school board.

“FEC Unlikely To Launch NRA-Russia Probe”


News broke late last week that the Federal Election Commission had opened a preliminary inquiry into whether Russians illegally channeled money to the National Rifle Association to support Donald Trump’s 2016 presidential campaign.

But the FEC’s move, which came after a complaint from a Democratic group, amounts to little more than a standard response, experts say. It will likely be months before the matter moves up through the appropriate channels and the controversy-averse panel of commissioners votes on whether to launch a formal investigation. And they’re highly unlikely to vote to do so.


“Kansas voting trial over. One more court day, a contempt hearing, ahead for Kobach”

Bryan Lowry for the KC Star:

A federal judge will decide whether thousands can vote in Kansas this fall after the conclusion of a two-week trial that saw a leading candidate for governor scolded and scrutinized.

Kansas Secretary of State Kris Kobach, a Republican candidate for governor, led the legal team defending the state’s proof of citizenship requirement, a policy he crafted, against a pair of federal lawsuits….

Kobach’s office has pointed to 129 non-citizens that it says either registered or attempted to register over nearly two decades, but he has repeatedly said this number could be “the tip of the iceberg” and has offered estimates that as many as 18,000 are on the state’s voter rolls.

Dale Ho, the lead attorney for the American Civil Liberties Union in the case, poked holes in these claims during his closing arguments Monday.

He pointed out that Kobach’s evidence from Sedgwick County shows that only 18 non-citizens registered going back to 1999 and only five of them ever voted compared to millions of ballots cast in the county during that timeframe.

“The iceberg on close inspection, your honor, it’s more of an ice cube,” Ho told U.S. District Judge Julie Robinson. “There’s no evidence that it’s in the thousands as Secretary Kobach has asserted.”

Ho played for the second time during the course of the trial a Kansas City Star video in which Kobach asserted that millions of illegal votes cost Trump the popular vote in 2016 and pointed to testimony from Kobach’s own witnesses disputing that.



Foley: Constitutional Preservation, the Marbury Duty & Congressional Gerrymanders

The following is the second in a series of guest posts on Benisek v. Lamone by Ohio State’s Ned Foley.

Edward B. Foley

This blog essay is the second in a series derived from a contribution to a University of Georgia Law Review symposium and picks up where the first installment left off.

Suppose the president of the United States, either this or a future one, decided to declare a state of national emergency and, using that declaration as a pretext, ordered the suspension of the next regularly scheduled presidential election and that, contrary to the express language of the Twentieth Amendment, the incumbent’s term of office would extend indefinitely until the declaration of national emergency were lifted.

That purported extension of the president’s term of office would be patently unconstitutional.  In addition to violating the unambiguous text of the Twentieth Amendment, it would contravene the Supreme Court’s repeated assertion that there is no “national emergency” power; nor any “national emergency” exception to the limitations that the Constitution imposes on the exercise of governmental authority.  Among the other major cases in which the Court has confirmed this point are the Minnesota Mortgage Case (Blaisdell) and the Steel Seizure Case (Youngstown).

Thus, were a president to attempt to extend his (or her) term of office in this unconstitutional way, the Supreme Court would be called upon to enjoin this unconstitutional usurpation.  Assuming compliance with the “case or controversy” requirements of the judicial power in Article III, including a plaintiff with proper standing (perhaps a candidate seeking to challenge the incumbent in the next regularly scheduled presidential election), the Court could not shirk its responsibility to invalidate the unconstitutional extension of the incumbent’s term on the ground that the litigation was too politically sensitive.  There might be fear that the incumbent president would refuse to obey the judicial order nullifying the president’s unconstitutional decree, just as there was fear that President Nixon would refuse to obey the Court’s order requiring him to turn over the Watergate tapes.  But that fear would not justify the Court’s failure to issue its order.  Under the doctrine of Marbury v. Madison, in a properly presented lawsuit the Court must declare and enforce what the Constitution requires.  It follows that in a government that purports to operate according to the rule of law, the president would acquiesce in the Court’s pronouncement of the constitutional command.  Otherwise, there would be a genuine and full-fledged constitutional crisis.

What all this establishes is that the Court’s duty to enforce the terms and requirements of the Constitution under Marbury v. Madison operates to thwart those other parts of the government that would endeavor to subvert it or its provisions.  The judicial effort to save the Constitution from subversion may not be successful.  There can be no guarantee of that.  But what Marbury does promise is that if the Constitution does fail, it won’t be because the federal judiciary refused to intervene when its jurisdiction is invoked.

So much, so good—but what does it have to do with congressional gerrymandering, which is the issue at hand because of the Benisek case from Maryland, now under consideration at the Court?  To see the connection, a couple more hypotheticals will help.

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Ron Collins’ SCOTUSBlog Interview with Me: “Ask the author: Antonin Scalia – ‘The Justice of Contradictions'”

Ron Collins at SCOTUSBlog:

The following is a series of questions posed by Ronald Collins to Richard L. Hasen on the occasion of the publication of his book “The Justice of Contradictions: Antonin Scalia and the Politics of Disruption” (Yale University Press, 2018, pp. 226).

Richard Hasen is the Chancellor’s Professor of Law and Political Science at the University of California, Irvine School of Law. Hasen is a nationally recognized expert in election law and campaign finance regulation, and is co-author of a leading casebook on election law.

Welcome, Rick, and thank you for taking the time to participate in this question-and-answer exchange for our readers. And congratulations on the publication of your latest book.

* * *

Question: You use the word “contradictions” in your title. What do you mean by that?

Hasen: Thanks to you and SCOTUSblog for this opportunity to talk about my new book, and for your great (but tough!) questions.

Justice Antonin Scalia was a jumble of contradictions. He said he had come up with jurisprudential theories to decide constitutional and statutory cases in ways that would increase the legitimacy of the Supreme Court, but his response to other justices who declined to follow his theories helped to delegitimize the court; he claimed these justices were acting as super-legislators and not judges. He said he wanted more civility in society and the law, but he used language in his opinions attacking other justices that was unprecedented in its nastiness. He was a Harvard law graduate who railed against Ivy League elites. There are many more examples of his contradictions in the book.

Question: In your subtitle you use the word “politics.” Why in a book about a judge and judging did you feel it necessary to use that word?…


“FEC probes whether NRA got illegal Russian donations”


he Federal Election Commission has launched a preliminary investigation into whether Russian entities gave illegal contributions to the National Rifle Association that were intended to benefit the Trump campaign during the 2016 presidential election, according to people who were notified of the probe.

The inquiry stems in part from a complaint from a liberal advocacy group, the American Democracy Legal Fund, which asked the FEC to look into media reports about links between the rifle association and Russian entities, including a banker with close ties to Russian President Vladimir Putin.


Breaking: Supreme Court, With No Noted Dissent, Refuses to Intervene in Pa Redistricting Case Just Hours After Lower Court Rules

I called this case a long shot for a long time, but the fact that there was no noted dissents is puzzling given the long delay.  The claim was really a weak one and would have led to a huge number of lawsuits challenging state court cases striking down redistricting on state constitutional grounds. Here are some possibilities for the delay.

1, The Court was waiting for the lower court to rule, in case the lower court saw something worth pursing. Given that the interests were almost identical to this case, this does not make much sense, but for the timing.

2. A Justice decided to write, another Justice wrote a response, and the original Justice changed his or her mind.  Who knows?

3. A Justice or more needed more time to consider the issues, and was pondering a dissent but then decided not to write.


Breaking: Three-Judge Federal Court (All Republican Nominees) Rejects PA Congressional Redistricting Challenge, Leaving Issue to SCOTUS

UPDATE: You can find the lower court opinion here. I find it hard to believe that any appeal of this order to the Supreme Court would make a difference when the issue is already before the Court in the pending Turzai case.


“California’s free-for-all primary election rules could surprise everyone in 2018 … again”

John Myers for the LAT:

The California primary that’s now less than three months away promises to be the system’s most important test, and possibly its most controversial. Although Democrats have largely consolidated their power behind just a few formidable candidates in statewide contests, local races with a multitude of candidates could allow Republicans to quell the anti-Trump fervor in at least four congressional districts that Democrats otherwise are well poised to capture.

“The top-two primary math is showing us there need to be fewer Democrats in those races,” said Merrill, whose Fight Back California political action committee is betting the bank on the seven Republican districts won by Democrat Hillary Clinton in 2016.

Recent polling by Merrill’s PAC found significant potential for GOP candidates in Southern California’s hottest races to finish first and second — even though a plurality of those surveyed said they would “definitely” vote Democratic. That includes seats being vacated by Reps. Darrell Issa (R-Vista) and Ed Royce (R-Fullerton) and the reelection effort of embattled Rep. Dana Rohrabacher (R-Costa Mesa).

Analysts also have pointed out the possibility for dispersed Democratic support in large fields of candidates running in GOP congressional districts representing the Central Valley and Sierra Nevada foothills. The nonpartisan California Target Book now counts 60 Democrats running in the 14 districts currently represented by Republicans.


Redacted Kobach Deposition Transcript and von Spakovsky Cross Examination Transcript Now Available, Includes Discussion of False Claim of Somali American Voter Fraud

This trial is going to go down in the history books. It is the first time the Fraudulent Fraud Squad’s spurious claims of massive voter fraud literally have been put to trial and cross examination. It is not going well for them.

(Redacted) transcript of Kobach deposition.

von Spakovsky examination and cross-examination.  Some excerpts from Dale Ho cross examination:

Q. You have not published any peer-reviewed research as an historian. Correct?
A. That’s correct.
Q. Now, you would say that outside of this case you’ve written extensively about the issue of vote
fraud. Correct?
A. Yes.
Q. And some of that extensive writing you’ve doneaddresses the issue of non-citizen registration.
A. Yes.
Q. And as an example of that, you would point to your 2012 book co-written with John Fund called “Who’s? How Fraudsters and Bureaucrats Put Your Vote At Risk.” Correct?

A. Correct.
Q. That book was not published by a universitypress. Correct?
A. That’s correct.
Q. It was published by a company called Encounter Books. Correct?
A. That’s correct.
Q. That book was not peer-reviewed. Correct?
A. No.
Q. In fact, you have published no peer-reviewed research on voter fraud. Correct?
A. I’m not in academics so I don’t use the peer-review process.
Q. So my question was: You have published no peer-reviewed research on the issue of voter fraud.
A. Yeah, I’m not in academics so I don’t use the peer-review process….

Q. Okay. Not talking about your expert report. I just want to talk about that op-ed for a second. You wrote that op-ed claiming that 50 non-citizens from Somalia voted in an election in Missouri, despite the fact that a month earlier there had been an election challenge– there had been an election contest in that case and a state court in Missouri issued an opinion, Royster versus Rizzo, finding that no fraud had taken place in that election.
A. I don’t know when that opinion was issued. I wasn’t aware of that when I wrote the piece, which was based on other reports.
Q. You’re aware of that now, right, Mr. von Spakovsky?
A. I’m aware of that now.
Q. You never published a written retraction of your assertion about Somalia voters illegally participating in that election, right, Mr. von Spakovsky?
A. I don’t believe so, but I don’t recall when I discovered that.


I can shed some light on this last incident. I flagged his error THE DAY his oped was published:

I Guess von Spakovsky Reads My Blog

Now with his oped reprinted in tomorrow’s Austin American Statesman, he’s corrected the Kansas-for-Missouri error.  But not the substance of his erroneous claim about “50 votes cast illegally by citizens of Somalia.”  Doesn’t McClatchy have an obligation to correct the record on this?

And this:

More Hans v. Reality

Hans: “A 2010 election in Kansas that ended in a one-vote margin of victory included 50 votes cast illegally by citizens of Somalia.”

Reality (Missouri Court of Appeals, affirming the following findings of the trial court) (note that this happened in Missouri not Kansas, as Hans stated):

Contestant Royster alleged that interpreters improperly assisted several Somali voters by handling the ballots, completing ballots, and providing instructions to the voters, at the Garfield Elementary School and the Kansas City Museum polling locations. Under the plain language of the statute, if Somali voters were unable to read or write, blind, or physically disabled, they were legally permitted to request assistance in voting. The only potential violations revealed in the evidence were that voters who needed assistance may not have been asked to make a declaration under oath, or that the interpreter helped more than one person to whom he/she was not related. There was testimony that at least one of the Somali men who was assisting persons was related to those persons. It would be proper for such assistance to be provided under the law. The evidence indicates that the election judges did not request an oath in these situations, and it was therefore a mistake of the election officials that no cards with proper oaths were obtained. There is no evidence that the failure of the election officials to obtain the cards interfered with the ability of the voters to cast the vote of their choice. Because [Section 115.445.3] does not automatically result in the invalidation of such a vote, the affect of these violations must be assessed. The key issue is whether the interpreter cast fraudulent ballots for voters or whether he voted as directed by qualified voters. . . . .
Based on the totality of the evidence, including the Court‟s determination of the credibility and bias of the witnesses, the evidence demonstrated that, although one or more individuals may have engaged in suspicious conduct at the Ward 11, Precincts 3 and 4 polling place in the East hall of the Garfield Elementary School, and the election judges may have made mistakes in administering certain election requirements, such as not offering or administering an oath to persons requiring assistance . . . the evidence does not establish that the conduct was fraudulent, that any person who was not registered to vote voted, or that any registered voter was prevented from casting their ballot as they intended.

“Facebook’s Role in Data Misuse Sets Off a Storm on Two Continents”


American and British lawmakers demanded on Sunday that Facebook explain how a political data firm with links to President Trump’s 2016 campaign was able to harvest private information from more than 50 million Facebook profiles without the social network’s alerting users. The backlash forced Facebook to once again defend the way it protects user data.

Senator Amy Klobuchar of Minnesota, a Democratic member of the Senate Judiciary Committee, went so far as to press for Mark Zuckerberg, Facebook’s chief executive, to appear before the panel to explain what the social network knew about the misuse of its data “to target political advertising and manipulate voters.”

The calls for greater scrutiny followed reports on Saturday in The New York Times and The Observer of London that Cambridge Analytica, a political data firm founded by Stephen K. Bannon and Robert Mercer, the wealthy Republican donor, had used the Facebook data to develop methods that it claimed could identify the personalities of individual American voters and influence their behavior. The firm’s so-called psychographic modeling underpinned its work for the Trump campaign in 2016, though many have questioned the effectiveness of its techniques.

But Facebook did not inform users whose data had been harvested. The lack of disclosure could violate laws in Britain and in many American states.


Foley: Benisek, Congressional Gerrymanders & the Elections Clause

The following is the first in a series of guest posts on Benisek v. Lamone by Ohio State’s Ned Foley.

Edward B. Foley

This blog essay is derived from a forthcoming contribution to a University of Georgia Law Review symposium.

On March 28, the Supreme Court will hear argument in Benisek v. Lamone, the case from Maryland about partisan gerrymandering.  Last October, the Court already heard argument in Gill v. Whitford, the Wisconsin case on partisan gerrymandering. When the Court accepted Benisek for argument, many wondered what of value it would add for the Court beyond Gill itself.

Most observers focused on two features of Benisek.  First, the specific claim in the case concerned a First Amendment theory not advocated in Gill.  The Benisek theory challenges each gerrymandered district one-at-a-time, whereas the Gill claim attacks a gerrymandered map as a whole.  Second, Benisek challenges partisan gerrymandering perpetrated by Democrats, while Gill involves a Republican-perpetrated gerrymander.  Commentators (including the custodian of this Election Law blog, Rick Hasen himself), noted that if the Court scrupulously applied the same constitutional standard to both, then the public would not perceive the Court engaged in its own form of partisan favoritism.  (At the oral argument in Gill, Chief Justice Roberts pointedly expressed concern that the public might have this perception.)

These two distinctive features of Benisek are not unimportant.  But there is a third difference between the two cases that is even more fundamental.  Benisek involves congressional districts, whereas Gill concerns seats in a state’s own legislature.  To be sure, both cases have been litigated as if this distinction does not matter.  If the Equal Protection Clause condemns partisan gerrymandering according to the theory espoused by the plaintiffs in Gill, then that Equal Protection constraint applies as much to congressional districts as to seats in the state’s legislature. Conversely, if the First Amendment bars partisan gerrymanders according to the principle articulated by the Benisek plaintiffs, then this First Amendment prohibition applies as much to a state’s own legislative districts as to congressional seats.

But there is an additional argument applicable to congressional gerrymanders that does not apply to the gerrymandering of state legislatures.  It is an argument rooted in the Elections Clause of the federal Constitution.  This clause, found in section 4 of Article I, lets state legislatures adopt rules for the “Times, Places, and Manner” of congressional elections unless and until Congress choose to “make or alter such Regulations” itself.  This Elections Clause, moreover, must be read in conjunction with section 2 of Article I, which requires that “Members” of the federal “House of Representatives” be “chosen every second Year by the People of the several States.”  Putting the two provisions together, state laws purporting to set the procedures for congressional elections cannot undermine the basic obligation that these elections be responsive to the periodically changing will of the “People” in the state.  In contrast to elections for the Senate and the presidency, which the original Constitution did not entrust to the “People” directly and which the Founders did not want to be so immediately susceptible to changing public opinion (setting the terms for senators and the president at six and four years, respectively), the House of Representatives was to be the one part of the federal government directly accountable to popular sentiment, and this sentiment was entitled to make itself known at biennial intervals in order to reflect the right of the “People” to update its political preferences in light of new circumstances.  If the gerrymandering of a state’s congressional districts by the state’s legislature prevents congressional elections from being responsive to the will of the “People” in the state (contrary to what section two of Article I requires), then the state legislature has breached the trust conditionally reposed in it by the Elections Clause to make procedural rules for the holding of congressional elections in the state.

Continue reading


“Texas AG Ken Paxton ramps up fight against schools’ ‘illegal electioneering'”

Texas Tribune:

Dyes suspects that it was his Twitter presence, where he often retweets educators pledging to “#blockvote” in favor of pro-public education candidates, and that of the district, that drew Paxton’s attention.

Dyes was one of more than a dozen administrators whose districts were hit last month with open records requests from the Texas Attorney General’s Office seeking district communications about Texas primaries, voting and certain candidates and races, documents obtained by The Texas Tribune in a records request show.

And he was one of a smaller group of educators whose district also received a cease-and-desist letter from Paxton, the state’s top lawyer. After sending three letters last month, Paxton’s office sent two more Friday morning — to Elgin ISD and Galena Park ISD, both districts that had received records requests — asking administrators to stop using taxpayer money to advocate for political candidates.

“School districts violate the Texas Election and Education codes when they exhort faculty or others to vote for a particular person or ballot measure,” Paxton said in a statement Friday. “Spending taxpayer dollars on advocating for or against political candidates is unacceptable.”

The letters are just the latest salvo in an ongoing battle over the role Texas public schools play in elections. Long-standing civic engagement initiatives aimed at getting more Texas teachers out to vote have come under fresh attackthis election cycle, with conservative groups and Paxton himself warning that some efforts constitute “illegal electioneering.” A January ruling from his office advised districts that busing teachers and voting-age students to polling places is illegal unless such trips serve an “educational purpose.”


“Before he died last week, this man changed how we vote in California. Do you know him?”

Tribute to Joaquin Avila by Marcus Breton in the Sacramento Bee, including these comments from Morgan Kousser:

CVRA simplified winning voting-rights cases,” Kousser said. “In federal law, there are great many factors you need to prove before filing a voter rights case. With CVRA, you only need to show racially polarized voting and that minority candidates usually lose.” If CVRA is challenged, the cities and counties that lose pay big judgments.

Since 2007, school boards across California have seen a significant number of Latinos elected, Kousser said. Those school board members are likely to become future city council members, mayors, state legislators or more.

“Joaquin worked to integrate Latinos into the power structure and to give Latino voters a sense that government was responsive to them,” Kousser said. “We’ve already seen the effects of his work, and in 10 more years, we will see even more effects.”


Today’s Must-Read: “How Trump Consultants Exploited the Facebook Data of Millions”


As the upstart voter-profiling company Cambridge Analytica prepared to wade into the 2014 American midterm elections, it had a problem.

The firm had secured a $15 million investment from Robert Mercer, the wealthy Republican donor, and wooed his political adviser, Stephen K. Bannon, with the promise of tools that could identify the personalities of American voters and influence their behavior. But it did not have the data to make its new products work.

So the firm harvested private information from the Facebook profiles of more than 50 million users without their permission, according to former Cambridge employees, associates and documents, making it one of the largest data leaks in the social network’s history. The breach allowed the company to exploit the private social media activity of a huge swath of the American electorate, developing techniques that underpinned its work on President Trump’s campaign in 2016.

An examination by The New York Times and The Observer of London reveals how Cambridge Analytica’s drive to bring to market a potentially powerful new weapon put the firm — and wealthy conservative investors seeking to reshape politics — under scrutiny from investigators and lawmakers on both sides of the Atlantic.


“Lack of court action on new Pa. voting map causing concern”

Pittsburgh Post-Gazette:

With Tuesday’s deadline for filing nominating petitions imminent, prospective candidates waiting for courts to take action on Pennsylvania’s radically reconfigured congressional map learned Friday that the wait will continue.

By day’s end Friday, neither the U.S. Supreme Court nor the U.S. District Court here had decided whether to grant requests from Republican lawmakers who want them to overturn the new congressional map put in place by the Pennsylvania Supreme Court, which ruled that lines drawn in 2011 represented an unconstitutional partisan gerrymander favoring Republicans.

Members of both parties and outside experts appeared to be at a loss to explain the courts’ inaction. The delay, at least on the U.S. Supreme Court side, is “quite unusual,” said Richard L. Hasen, a law and political science professor at the University of California, Irvine.


“Georgia Republicans are trying to eliminate Sunday voting to suppress black turnout”

Kira Lerner:

Georgia Republicans are advancing a bill through the state legislature that would suppress African-American turnout by eliminating Sunday voting and cutting the hours that polls are open in Atlanta.

The bill, SB 363, would force polls in the majority African American city of Atlanta to close an hour earlier — 7 p.m. instead of 8 p.m. — and would eliminate early voting on the Sunday before Election Day. That Sunday is often a high-turnout day for African American voters because of Souls to the Polls events that encourage people to cast ballots early after attending church….

If this legislation does pass and Republicans continue to be overt about their intention to suppress black voters, the bill would violate the U.S. Constitution. Democrats and voting advocates are also likely to raise objections under the Voting Rights Act, although the U.S. Supreme Court significantly weakened the power of that landmark legislation in 2013 when it ruled that states and jurisdictions with a history of racial discrimination, like Georgia, no longer need to preclear changes to their voting law with the Department of Justice.


Montana: “Green Party candidate was on state GOP payroll”


 A man who registered as a Green Party candidate for Montana’s U.S. Senate race was on the state Republican Party’s payroll and heads a newly formed anti-tax group, according to a review of election documents.

Timothy Adams filed as a challenger Monday against Democratic Sen. Jon Tester, who faces a tough re-election campaign, in a race where a Green Party candidate could siphon votes from the Democrat.


“NRA lawyer said to have had concerns about group’s ties to Russia”


Congressional investigators are examining information that a longtime attorney for the National Rifle Association had concerns about the group’s ties to Russia and its possible involvement in channeling Russian funds into the 2016 elections to help Donald Trump, two sources familiar with the matter say.

Cleta Mitchell, a former NRA board member who has done legal work for the organization, is on a newly disclosed list of people whom Democrats on the House Intelligence Committee are seeking to interview. Democratic investigators for that committee’s Senate counterpart also are interested in what she may know about relationships between the NRA or its allies and wealthy Russians, said the sources, who spoke on condition of anonymity because of the sensitivity of the matter.

Mitchell told McClatchy in an email that any suggestion she has concerns about the NRA’s Russia connections is a “complete fabrication.”


Minnesota: “Audit Finds Little Voter Fraud, But Recommends Improvements”


Minnesota should develop a report that helps county election officials identify people who aren’t eligible to vote, the legislative auditor’s office recommended Friday.

The auditor’s office examined the state’s election system and voter registration practices for months, interviewing county election officials and county attorneys who prosecute allegations of voter fraud.

The audit did not find widespread problems with the system. County attorneys reported 69 investigations of ineligible voting in the past two years, with most not resulting in convictions.


“Election Security War Game: Testing Critical Infrastructure Designation”–April 12 at W & M

Upcoming event:

Election Security War Game: Testing Critical Infrastructure Designation


Election Law Program

William & Mary Law School

April 12, 2018

3:30-6:00, Room 119

Free and Open to the Public

Virginia CLE Credit available


On April 12, 2018, the William & Mary Election Law Program will host a unique symposium aimed at expanding understanding of the role of courts in promoting election security. The symposium will kick off with a war game simulating an election security dispute in the fictional state of “Flichigan.” Panelists will then debrief the moot and discuss election security challenges going forward, including the role of the federal government in helping states secure election infrastructure, the perils and promise of our decentralized of election system, and the role of judges in promoting public confidence in state election security.




Joseph Lorenzo Hall, Center for Democracy & Technology

Kemba Walden, Department of Homeland Security

Mark Listes, Election Assistance Commission

David Becker, Center for Election Innovation & Research

Edgardo Cortes, Former Commissioner Virginia Department of Elections

John Davisson, Electronic Privacy Information Center


Registration (free) and more details available HERE.



“Trump Administration Sanctions Russians for Election Meddling and Cyberattacks”


 President Trump’s administration imposed sanctions on a series of Russian organizations and individuals on Thursday in retaliation for interference in the 2016 presidential elections and other “malicious” cyberattacks. It was the most significant action taken against Moscow since Mr. Trump took office.

The sanctions came at the same time the Trump administration joined a collective statement with Britain, France and Germany on Thursday denouncing Russia for its apparent role in a nerve gas attack on a former Russian spy and his daughter on British soil, calling it a “clear violation” of international law. But the statement included no joint action in response.

The American sanctions announced on Thursday targeted many of the same Russian organizations and operatives identified by Robert S. Mueller III, the special counsel, in an indictment that outlined an audacious attempt to spread disinformation and propaganda to disrupt American democracy and, eventually, influence the vote on behalf of Mr. Trump. The sanctions also responded to other cyberattacks, including a previously undisclosed attempt to penetrate the American energy grid.


“Elected Officials, Secret Cash”

Brennan Center:

At least two presidents, seven governors and several prominent mayors – from both major parties – have established nonprofits that allow them to raise unlimited, anonymous funds for political spending after election day. In recent years, the risk of dark money in our elections has become apparent, but we pay less attention to the politicking that happens after election day. This report is the first comprehensive analysis of a yawning gap in rules that govern money in politics and government ethics, and poses a serious risk of corruption. It finds that spending by nonprofits that coordinate with elected officials after they take office goes almost entirely unchecked, and calls for new laws to limit political funding by officeholder-controlled nonprofits.

Read the introduction

Download the report


“GOP’s new tax law encourages campaign donor secrecy”

Ellen Aprill oped in the Hill:

As a result of these changes, estimates of the percentage of taxpayers who will itemize has fallen to somewhere between 5 percent and 10 percent. The vast majority of taxpayers will benefit more from taking the standard deduction. Those taxpayers with income between $100,000 and $200,000 will show a particularly large shift from itemizing to taking the standard deduction, dropping from over 50 percent to under 20 percent.

The nonpartisan Tax Policy Center estimates that charitable contributions will decline by about $12.3 billion to $19.7 billion per year. Charitable organizations most dependent on the middle class, which includes organizations that provide social services, are now likely to have few itemizers among their donors.

A number of nonprofit law experts believe that those interested in social services and other activities supported by the middle class may well decide to form new section 501(c)(4) organizations or encourage contributions to an existing section 501(c)(4) organization. (The National Rifle Association, the Sierra Club and the ACLU are existing among the many groups that have both 501(c)(3) and 501(c)(4) arms).

For donors not itemizing the deductions, there is no tax disadvantage to giving to a section 501(c)(4) organization instead of a section 501(c)(3) entity. But there are advantages. Tax-exempt section 501(c)(4) organizations can not only do good and lobby legislatures freely on issues important to them, but give considerable support to candidates for election who share their positions on key issues.

Thus, given the coming conflict in Congress over the size and scope of the social safety net, the ability to engage in not only in unlimited lobbying but also and especially campaign intervention through a section 501(c)(4) social welfare organization will hold enormous, perhaps irresistible, appeal, as such organizations will undoubtedly explain in fundraising. Recent scholarly work has underscored the importance of fundraising efforts by 501(c)(4) organizations.


“Van Ostern Launches Campaign to Oust Gardner as N.H. Secretary of State”


New Hampshire’s Secretary of State is elected every two years, not by voters but by the Legislature – meaning that to win, Van Ostern will have to persuade enough state lawmakers that he’s better suited for the job than the man who’s held the seat for four decades and counting.

To that end, he launched a political committee last fall meant to “support state issues and candidates who are moving New Hampshire forward.” It was originally called “NH Forward” but was recently rebranded as “Free and Fair NH.” As of its most recent filing, in December, it’s raised more than $45,000 to pour into upcoming legislative races.

Van Ostern says he will not require legislators to support his candidacy in exchange for support from his political committee, but he will ask them to support his agenda.

That agenda, as outlined at Van Ostern’s press conference, is wide-reaching — covering both well-known aspects of the Secretary of State’s job (protecting New Hampshire’s first-in-the-nation presidential primary) and lesser-known responsibilities (overseeing corporate filings and acting as a resource for local election officials).

His stated priorities include advocating for an independent redistricting commission, modernizing business registration procedures and campaign finance reform, specifically a prohibition on “all corporate and business donations” in New Hampshire political campaigns. Van Ostern also pledged to follow that last rule in his own campaign moving forward….

Gardner’s 42-year tenure as Secretary of State makes him the longest-serving state elections chief in the country. Those deep roots in the position, coupled with his loyal defense of New Hampshire’s first in the nation presidential primary, has made Gardner something of a Granite State icon, known nationwide.

But critics — including his newly announced rival — have also found fault with Gardner’s involvement in the Trump administration’s now-defunct voter fraud commissionhis support for stricter voter eligibility requirements and, as recently as this week, his insistence that his office hold the final authority over the scheduling of even town-level elections.


“FEC considers expanding political ad disclaimers to mobile apps”


Federal officials on Wednesday unveiled a proposal that could expand political disclaimer rules beyond websites such as Google to mobile applications such as Snapchat, but could give leeway about how much information would have to be disclosed based on the size of the ad.

The Federal Election Commission voted to seek public comment on the proposed new rules, which aims to update federal regulations to adapt to new technology.

The proposal would apply narrowly to a small category of political commercials and likely would leave largely untouched the types of ads that were linked to Russian operatives in the 2016 campaign. The new requirement may not be in place to affect the 2018 midterm elections, which are now underway.


In Strange, Unanimous Unpublished Opinion, 11th Circuit Revives Common Cause’s Voter Purge Case Against Georgia

The district court had dismissed Common Cause’s claim that Georgia’s voter purge law violated the NVRA and the First Amendment.

Today, the Eleventh Circuit, in a brief, unpublished opinion, sent the case back and told the trial court to reconsider the NVRA issue in light of what the Supreme Court will do (presumably by June) in the Ohio voter purge case.

And then, without providing any guidance, it wrote that the trial court “should also conduct a more detailed analysis of the First Amendment question.” It provided no guidance as to how to think about this question.

And it added in a footnote: “On remand, nothing precludes the Plaintiffs from moving the district court for a preliminary injunction to restore those removed voters from the voter registration rolls pending a ruling from the Supreme Court.”

Common Cause rightly treats this as good news, but the brevity and lack of direction here is downright strange.


“Approval Of Tempe Ballot Measure Could Set Up Showdown With State”


Tempe voters overwhelmingly approved Proposition 403, which amends the City Charter to “require the disclosure of the origins of major contributions used to influence city elections.”

That goes against a bill in the state Legislature that prohibits Arizona cities and counties from looking into who’s spending what on local elections.

Tom Collins, executive director of the Arizona Clean Elections Commission, is here to talk about this.


“Kobach witness can’t support claim that illegal votes helped Hillary Clinton”

CJ Online:

Jesse Richman endured a blistering critique Tuesday of his estimate of 18,000 noncitizen voters in Kansas and said he couldn’t support claims by Kansas Secretary of State Kris Kobach that Hillary Clinton won the popular vote because more than 3 million illegal ballots were cast in the 2016 presidential election.

Richman, who teaches political science at Old Dominion University, testified as an expert witness for Kobach in a trial over the state’s voter registration law. Kobach, who is seeking the GOP nomination in this year’s governor’s race, has referred to the 18,000 figure as the best available estimate for showing proof of citizenship is needed to address widespread voter fraud.

American Civil Liberties Union attorneys took aim at shortcomings in Richman’s methods and presented two experts to refute his conclusions.

Varying estimates from Richman are based on small-sample surveys, including one in which six of 37 noncitizens said they tried to register to vote. Under questioning by ACLU attorney Dale Ho, Richman acknowledged he had no way of knowing if those six were successful in their efforts.

In another survey, Richman looked at suspended voters — those who didn’t provide proof of citizenship — and flagged any names that appeared to be foreign. Ho asked if, for example, a name like “Carlos Murguia” would be flagged. When Richman said yes, Ho informed him Murguia is a federal judge in the same courthouse where the trial is taking place.

Eitan Hersh, a political science professor at Tufts University, looked at comparable data and found five examples of people who voted before becoming citizens.

Hersh also discovered 400 people on the voter rolls who registered to vote before their recorded birth dates. In an allusion to voter fraud claims, Hersh said it would be ridiculous to suggest there is a widespread problem with parents registering their unborn children, calling it obvious administrative error.


“FTC Exclusively Obtains Records from U.S. Marshals Service on Scalia’s Final Trip, Justices’ Summer Travel”

Fix the Court:

On the day before he died, Justice Antonin Scalia – deplaning from Southwest flight no. 1209 at Houston Hobby, gun in tow and in poorer health than was widely known – was met by deputy U.S. marshals for assistance in transferring to a chartered plane headed for the posh Cibolo Creek Ranch in a remote part of West Texas. As a member of the Supreme Court, Scalia was within his rights to request that the agents remain with him during his trip but instead opted for protection only during his layover.

His ultimate interaction with the agency came as deputies in field offices across Texas and as far away as Washington scrambled to notify one another and other authorities of his passing. That process included informing the Supreme Court Police Department, which cedes the responsibility for protecting the justices outside of the District to the U.S. Marshals Service and was not told of Scalia’s death until two hours after his body was found motionless in his suite at 11:00 a.m. on Feb. 13, 2016. USMS deputies did not arrive at the ranch until at 2:38 that afternoon.

Documents procured from a nearly two-year-old Fix the Court FOIA request to USMS present new information on how federal agents responded to a momentous event in an isolated part of the country and for the first time reveal the formal policies, and underscore the shortcomings therein, for when justices are granted protection outside of the nation’s capital.


With Lamb Holding 627 Vote Lead in PA-18 Congressional Race, Republicans Raise Claims of Voting Irregularities, Possibility of Requesting Recount


In a highly-watched special election in western Pennsylvania, Democrat Conor Lamb is currently maintaining a slim lead over Republican Rick Saccone Wednesday morning.

With all precincts fully reporting and absentee ballots counted, Lamb holds a 627-vote lead over Saccone in Pennsylvania’s 18th district, a GOP stronghold that President Trump won by nearly 20 percentage points during the 2016 election. NBC News has declared Lamb the “apparent winner,” while the Associated Press has not yet declared a winner. Lamb has claimed victory in the race, but Saccone has not conceded, and the national Republican Party hasn’t ruled out a recount….


A Republican source familiar with the campaign said that the GOP planned to petition for the voting machines used in all four counties to be impounded, pending a recount.

It is not yet clear where such a petition would be filed. But Republicans are investigating a number of purported Election Day irregularities including problems with the machines, voters being told to go to the wrong polling places, and Republican attorneys being barred from overseeing the counting of absentee ballots in Allegheny County.

County spokeswoman Amie Downs said that on Election Day there had been discussions with Republican attorneys about their ability to oversee the vote-counting process. Under the state Election Code, she said, such observers must have a signed authorization from the chair of the county committee. “They didn’t produce that until the very end of the evening, when the ballots had already been scanned,” she said.

A recount is not mandatory in Tuesday’s special election for Pennsylvania’s 18th Congressional District, according to Pennsylvania Secretary of State spokesperson Wanda Murren.


Released Emails Show Coordination Between DOJ and Pence-Kobach Fraud Commission over Voter Fraud Allegations, with Communications Between John Gore and EAC’s Christy McCormick


The chair of the Republican Party in Chicago last year passed on allegations of voter fraud to a member of President Trump’s now-defunct voter fraud commission, using a top Justice Department official as intermediary, newly released emails reveal.

The emails, which were obtained by the Electronic Privacy Information Center via a Freedom of Information Act request, suggest that Republican officials sought to use the commission as a clearing-house for allegations of voter fraud from around the country, no matter how unsubstantiated.

In one email, Christy McCormick, who was a member of the voter fraud panel, told Acting Assistant Attorney General for Civil Rights John Gore that she was seeking to have the voter fraud panel investigate the allegations.

“Hopefully between DOJ and the Commission we can clean up the voter rolls,” McCormick said in one email.  McCormick, a Republican, is also a member of the U.S. Election Assistance Commission (EAC), the federal agency that helps states administer elections.

As the voter fraud commission became a flashpoint for controversy, Democratic lawmakers and advocacy groups sought information about the level of communication it had with the Justice Department.

Testifying in front of a Senate committee, Attorney General Jeff Sessions denied coordination, but alluded to some level of contact.


“Despite pledge to ‘drain the swamp,’ Trump has shown little interest in beefing up the Federal Election Commission”


More than a year into his presidency, President Trump has shown little interest in beefing up the Federal Election Commission, the agency that could serve as a key player in his avowed agenda to reduce the influence of moneyed interests on politics.

So far, Trump has nominated just one new commissioner to fill the two open spots on the panel. He has the opportunity to name an entirely new slate. The remaining four commissioners are serving on expired terms, two of which ended as long as a decade ago.

If one more leaves without being replaced, the FEC will lack a quorum and be effectively paralyzed.