“When Poll-Watching Crosses the Line”

Must-read Jocelyn Benson in Politico:

Trump and Pence are partly correct: There is great value in having elections monitored. Poll watching helps to preserve an open, transparent democratic process by ensuring that elections are administered in a manner that protects access while inviting scrutiny. Poll observers can ensure the law is followed, provide support for voters and poll workers in navigating often confusing and ever-evolving election regulations.

But in nearly a decade of organizing vote-monitoring efforts around the country, I have seen firsthand how volunteer monitors—often positioned as “challengers” at the polls—can intimidate and harass even the most seasoned poll workers and voters, interfere with the process, delay voting, and potentially alter the election’s outcome.

 

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Breaking: 7th Circuit Refuses En Banc in Both WI Voter ID Cases; No More Changes Unless #SCOTUS Intervenes

A unanimous 7th Circuit issued this order en banc refusing to place the affidavit requirement to soften voter id back into effect at this point, and rejecting the other cross appeals. This would leave only the Supreme Court as a place to go to appeal, and relief there seems quite unlikely

To recap, in the Frank case, the trial court ruled that because some voters will have a hard time voting without voter id given Wisconsin’s strict list of acceptable ids, any voter without id could sign an affidavit saying he or she had a reasonable impediment to getting the id and would be allowed to vote. A Seventh Circuit panel put that ruling on hold for this election, and plaintiffs went to the full 7th Circuit to get it reinstated. Meanwhile, a separate court in the One Wisconsin Now case did not impose a voter id requirement, but confirmed that for this election Wisconsin is going to make it easy for people without id to get that id.

The reason the 7th Circuit was unanimous, and did not split badly as it did in the first round of the Frank v. Walker litigation (when the Court split 5-5 over the facial unconstitutionality of Wisconsin’s voter id law), is that thanks to the One Wisconsin Now litigation, for the upcoming election, Wisconsin is going to make it easy for people to get a temporary id from the DMV:

Frank II held that “[t]he right to vote is personal and is not defeated by the fact that 99% of other people can secure the necessary credentials easily”, and that the state may not frustrate this right for any eligible person by making it unreason‐ ably difficult to obtain a qualifying photo ID. Id. at 386. The district court in One Wisconsin Institute concluded from this that an eligible voter who submits materials sufficient to initiate the IDPP is entitled to a credential valid for voting, un‐ less readily available information shows that the petitioner is not a qualified elector. The court in One Wisconsin Institute also held that the state must inform the general public that those who enter the IDPP will promptly receive a credential valid for voting, unless readily available information shows that the petitioner is not a qualified elector entitled to such a credential. 2016 U.S. Dist. LEXIS 100178 at *181–82. This court denied the State’s motion to stay the Western District’s injunction pending appeal. See Order, One Wis. Inst., Inc. v. Thomsen, Nos. 16‐3083 & 16‐3091 (7th Cir. Aug. 22, 2016).   The State assures us that the temporary credentials required in the One Wisconsin Institute decision will indeed be available to all qualified persons who seek them. In its response to the petition for initial hearing en banc in Nos. 16‐ 3003 and 16‐3052, it said this: ʺ[T]he State has already voluntarily accommodated any concerns relating to the November 2016 election. Specifically, Wisconsin has enacted a rule that requires the Division of Motor Vehicles (‘DMV’) to mail automatically a free photo ID to anyone who comes to DMV one time and initiates the free ID process. See Wis. EmR1618, § 10. No one must present documents, that, for some, have proved challenging to acquire; no one must show a birth certificate, proof of citizenship, and the like. Id. § 6.” Resp. to Pet. For Initial Hr’g En Banc at 1, Frank v. Walker, Nos. 16‐3052 & 16‐ 3003 (7th Cir. Aug. 8, 2016) (emphasis in original). Given the State’s representation that “initiation” of the IDPP means only that the voter must show up at a DMV with as much as he or she has, and that the State will not refuse to recognize the “initiation” of the process because a birth certificate, proof of citizenship, Social Security card, or other particular document is missing, we conclude that the urgency needed to justify an initial en banc hearing has not been shown. Our conclusion depends also on the State’s compliance with the district court’s second criterion, namely, that the State adequately inform the general public that those who enter the IDPP will promptly receive a credential for voting, unless it is plain that they are not qualified. The Western District has the authority to monitor compliance with its injunction, and we trust that it will do so conscientiously between now and the November 2016 election.

I believe, but I’m not sure, that this disposes of all of the issues in front of the en banc court now, meaning no more changes to the rules put in place by the courts. The only way this could change would be if either the plaintiffs or the state go to the U.S. Supreme Court. Given the lateness of time and upcoming preparations for early voting, and given the 4-4 ideological split on SCOTUS (with 5 votes needed to make a change), I think this is the end of the line for this election.

After the election, these cases will get further review in the 7th Circuit.

[This post has been updated.]

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“Steve Bannon moves Florida voter registration to home of Breitbart writer”

Guardian:

Donald Trump’s campaign chief has moved his voter registration to the home of one his website’s writers, after the Guardian disclosed that he was previously registered at an empty house in Florida where he did not live.

Stephen Bannon is now registered to vote at the Florida house of Andy Badolato, who reports for Breitbart News and has worked with Bannon in the past on the production of political films.

According to public records, Badolato, 52, and two of his adult sons are also registered to vote at the property, which he co-owns with his ex-wife.

A spokeswoman for Bannon, a spokesman for Trump, and Badolato did not respond to emailed questions about whether Bannon lives at the single-family house, which is listed as his residence on his new voter registration record in Sarasota County.

My earlier coverage expressed skepticism about the Guardian’s claim that Bannon committed voter registration fraud. This new revelation will prompt questions as to whether Bannon actually spends time at Badolato’s home and considers it his domicile.

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“Sixth Circuit Upholds Kentucky’s Failure to Have a Procedure for an Unqualified Party to Become a Qualified Party in Advance of Any Particular Election”

BAN:

On August 26, the Sixth Circuit issued an opinion in Libertarian Party of Kentucky v Grimes, 16-6107. The opinion upholds Kentucky’s failure to have any procedure for a group to transform itself into a qualified party, in advance of any particular election. Kentucky is one of only eleven states that lacks any such procedure. Instead, Kentucky, and the other ten states, only have candidate petitions. A group can’t become a qualified party in Kentucky until after it puts a candidate for President on the ballot who then gets at least 2% of the vote. The other states that lack such a procedure for a group to become qualified in advance of an election are Connecticut, Illinois, Indiana, Iowa, New Jersey, New York, Pennsylvania, Virginia, Washington, and West Virginia.

The case also challenged the Kentucky law (unique in the nation, except for Washington), that confines the vote test to just President.

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“NC GOP chairman Woodhouse asked Wake elections board to make his cousin chairman”

News & Observer:

The leader of the N.C. Republican Party urged a Wake County Board of Elections member to appoint his cousin as chairman of the board, according to emails released this week.

Records show Dallas Woodhouse, the state GOP’s executive director, sent an email to a private account of board member Ellis Boyle on Aug. 7. Woodhouse asked Boyle to give the reins of the board to his cousin, Eddie Woodhouse, who the state appointed to the board that day.

Dallas Woodhouse also asked Boyle to delay any vote on a plan to expand early voting from 10 to 17 days, as required under a court ruling that applies statewide.

The board didn’t grant either request, and Boyle chastised Dallas Woodhouse for discussing public business through Boyle’s work email account instead of an elections-board account.

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“New York Law Curbs Impact of Citizens United”

Bloomberg BNA:

The impact of legislation signed by Gov. Andrew M. Cuomo (D) to combat the effects of the U.S. Supreme Court’s Citizens United decision will hurt nonprofit charities that were not intentionally targeted by the bill, according to “good government” groups.
The bill (S. 8160), which was signed by Cuomo Aug. 24, would prohibit coordination between independent expenditure groups and campaigns and make other changes to the state’s campaign finance and lobbying laws. The Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission eliminated decades-old restrictions on corporate campaign spending and allowed outside groups to raise and spend unlimited amounts for “independent expenditures” to influence campaigns.
While Cuomo hailed the measure as the first of its kind, the state’s leading good government groups urged him to veto the measure because it failed to address the ethical scandals that have rocked Albany, N.Y., in recent years. They also said the bill will “seriously harm some of New York’s most prestigious institutions.”
The bill, which generally took effect immediately, establishes strict limits on coordination, including a ban on coordination with independent spending groups formed by candidates, run by a candidate’s family members or run by former staffers.
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“Controversy vs. Corruption”

Eliza Newlin Carney:

All that helps explain why Clinton casts GOP attacks as purely partisan. Clinton is finding it harder to explain, however, why the line between the business and interests of the Clinton Foundation and its donors, and her work as secretary of state, became so hazy. Both Clinton and Democratic Party officials are bracing themselves for the next round of email disclosures. The appearance of a conflict of interest has thrown Democrats and their standard-bearer on the defensive—despite scant evidence thus far that any laws have been broken.

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Irony Alert: Trump Campaign CEO, Former Breitbart Head, Accused of Voter Fraud

The Guardian has an explosive story on Steve Bannon, the former head of Breitbart and now the Trump campaign CEO, possibly committing voter fraud:

Donald Trump’s new presidential campaign chief is registered to vote in a key swing state at an empty house where he does not live, in an apparent breach of election laws.

Stephen Bannon, the chief executive of Trump’s election campaign, has an active voter registration at the house in Miami-Dade County, Florida, which is vacant and due to be demolished to make way for a new development.

“I have emptied the property,” Luis Guevara, the owner of the house, which is in the Coconut Grove section of the city, said in an interview. “Nobody lives there … we are going to make a construction there.” Neighbors said the property had been abandoned for several months

Bannon, 62, formerly rented the house for use by his ex-wife, Diane Clohesy, but did not live there himself. Clohesy, a Tea Party activist, moved out of the house earlier this year and has her own irregular voting registration arrangement. According to public records, Bannon and Clohesy divorced seven years ago.

Bannon, Clohesy and Trump’s campaign repeatedly declined to answer detailed questions about Bannon’s voting arrangements. Jason Miller, a Trump campaign spokesman, eventually said in an email: “Mr Bannon moved to another location in Florida.” Miller declined to answer further questions.

So did Bannon commit voter fraud by lying about his residency?  If he in fact maintained residency by moving to another location in Florida, and he intended to make Florida his permanent residence, then arguably no, even if he was spending much of his time in other states. The question of residency is often difficult in practice, particularly for people who live in multiple places. But if he maintained no home in Florida and spent no time living there, there’s a decent chance he is fraudulently registered. These inquiries are notoriously fact specific.

There’s been a similar claim leveled against Ann Coulter for years. 

So while we may for now give the benefit of the doubt to Bannon, until more facts are ferreted out, we can know with confidence that his inflammatory Breitbart news, which fans the flames of rampant voter fraud as part of the fraudulent fraud squad and its network of phonies, would not do the same if they were covering someone like Bannon, especially if he were a person of color.

UPDATE: Michael McDonald checked the voter file and no evidence of Bannon actually voting in Miami-Dade. So is this voter registration fraud? Mike: “I’ll take him at his word that he briefly lived in the home (its a rental) – and at the time he intended to live there.”

But if this is the explanation, why didn’t the campaign say this instead of suggesting he had set up residency somewhere else in Florida? It shows the campaign was flat-footed at best in its response. Now the question: does he really have another Florida residence?

Further update: Here’s some evidence Bannon was living in the home when he registered there. So this looks like much ado about nothing.

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“Illinois redistricting referendum won’t appear on ballot”

AP:

A divided Illinois Supreme Court narrowly ruled Thursday that a voter referendum seeking to change how Illinois draws political boundaries is unconstitutional, making it ineligible to appear on the November ballot.

The high court, in a 4-3 decision, affirmed the ruling by a Cook County judge who determined the ballot initiative seeking to give legislative mapmaking power to an independent commission instead of lawmakers didn’t meet constitutional muster. It’s the second failed attempt to overhaul redistricting by petition in two years.

You can find the opinion at this link.

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“A Theory of Bribery”

Looking forward to reading this by Deborah Hellman (forthcoming, Cardozo Law Review):

In a unanimous opinion in McDonnell v. United States, the Supreme Court invalidated the conviction of the former Governor of Virginia on charges of bribery and called attention to the critical role that bribery laws play in democratic government. Bribery laws fulfill this function by determining what actions of governmental officials are, and are not, for sale. Bribery laws also undergird the Court’s campaign finance cases. Campaign finance doctrine rests on the assumption that a legitimate campaign contribution is distinguishable from a bribe, a least in theory. But is it? In order to answer this question, we need a theory of bribery. This is no easy task.

This article offers a new theory of bribery according to which agreements to exchange official acts for something else only constitute bribery when the value exchanged for the political act is something external to politics. According to this “external value” account, trading a legislative vote for money is bribery while trading it for another vote is not.

An “external value” theory of bribery explains why campaign contributions are controversial. Contributions can be seen as money or politics. However recent Supreme Court cases treat giving money to the campaigns of political candidates and elected officials as a central form of political participation. But if the campaign contribution is a purely political act, it becomes increasingly difficult to distinguish a campaign contribution from a bribe.

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Strange Goings on in Vermont Campaign Finance

Here’s a story from late July that probably deserves more coverage:

Accusations are flying in the state’s ongoing prosecution of an alleged campaign finance law violation from nearly two years ago.

The case involving Attorney General Bill Sorrell’s pursuit of Dean Corren, who ran for lieutenant governor in 2014, is still pending in federal district court in Burlington and Washington County Superior Court.

Sorrell is leaving office next year. He signaled in a recent interview that he is prepared to settle for less than his original request of $72,000 in fines and penalties. He accused Corren and his lawyer, John Franco, of being responsible for the delays in the case.

Corren called Sorrell’s interest in a settlement “disingenuous.” Corren said he would not agree to a deal, had already spent close to $20,000 in legal fees and wanted his name cleared.

Corren insists Sorrell should drop the state case because a ruling by District Judge William Sessions this year contained sections Corren said completely undermined the attorney general’s fundamental argument that a bulk email sent out on Corren’s behalf by the Democratic Party was not allowable while he was taking public funds to pay for his campaign.

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DOJ and Private Plaintiffs File #SCOTUS Responses in NC Emergency Voting Case

Private Plaintiffs’ response.

DOJ’s response.

Chief Justice Roberts can now decide this motion himself or refer to the Court. (NC might try to draft a reply by tomorrow).  I’d expect a decision early next week. Here’s what I said about the chances when NC filed its emergency motion:

But there are two reasons to believe the Purcell argument is unlikely to gain a fifth vote here: first, the timing problem is North Carolina’s fault. The fourth circuit specifically addressed the timing issue in its denial of a stay, pointing out the assurances the state gave the fourth circuit that a decision by the end of July would be enough time to implement its decision. And they waited SEVENTEEN DAYS to file this thing. Second, there is a finding of intentional discrimination here, and as I argue in my piece Reining in the Purcell Principle, such a finding should weigh heavily on a court in considering whether a last minute change is warranted. That is, even if a change comes at the last minute from a court, it can well be justified if the state has engaged in deliberately bad conduct. In these circumstances, as I’ve written, I don’t expect Justice Breyer to be a fifth vote for a “courtesy stay.”

So here’s my prediction: stay denied by the Supreme Court, either without comment, or with a dissent from Justices Alito and Thomas.

 

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“How to seek consensus presidential nominees in 2020”

Saul Anuzis in The Hill:

Last month the major parties held their conventions to pick presidential nominees Donald Trump and Hillary Clinton. But before we turn our attention solely to the general election, I’d like to highlight a sensible proposal that state parties have the power to enact before the 2020 elections that promises to benefit both parties.

We have become a multiple option society in nearly every way. Politics is no different, as the 11 serious candidates seeking the Republican nomination at the time of the Iowa caucuses can attest. A greater mix of candidates and choices can enrich our policy debates and allow parties to show they have a big tent that, when united, can hold a majority of Americans.

There’s just one problem: we only allow voters to indicate support for one candidate no matter how many choices they have. It’s time to seriously consider what Robert’s Rules of Order calls preferential voting and what many cities using it call “ranked choice voting.”

Ranked choice voting is a proven way to vote. Its recommendation by Robert’s Rules has led to extensive use by private organization elections, from the Utah Republican Party to the Oscars for Best Picture. London elects its mayor with ranked choice voting, and Australia has used it for its national elections for nearly a century.

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“Judge sets oral arguments to determine if Texas intended to discrminate with voter ID law”

David Saleh Rauf reports in the San Antonio Express-News on this Order setting a January argument date on the question whether Texas passed its voter identification law with a racially discriminatory purpose.

A finding of racially discriminatory purpose could allow the trial judge to strike the entire voter id law (and not just soften it). It could also lead, under Section 3 of the Voting Rights Act, to placing Texas back under Federal supervision of its voting laws for up to 10 years.

The story also notes that the Texas AG has seemed to indicate there will NOT be any emergency action to the Supreme Court before the election to reverse the softening of the law ordered by the 5th Circuit and adopted by Texas in the district court.

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“‘Natural Born’ Disputes in the 2016 Presidential Election”

Derek Muller has posted this draft on SSRN (forthcoming, Fordham Law Review).  Here is the abstract:

The 2016 presidential election brought forth new disputes concerning the definition of a “natural born citizen.” The most significant challenges surrounded the eligibility of Senator Ted Cruz, born in Canada to a Cuban father and an American mother. Administrative challenges and litigation in court revealed deficiencies in the procedures for handling such disputes. This paper exhaustively examines these challenges and identifies three significant complications arising out of these disputes.

First, agencies tasked with administering elections and reviewing challenges to candidate eligibility often construed their own jurisdiction broadly, but good reasons exist for construing such jurisdiction narrowly given ample political and legal opportunities to review candidates’ qualifications. while litigation in federal court usually led to swift dismissal on a procedural ground, challenges in state proceedings sometimes led to broad—and incorrect—pronouncements about the power to scrutinize the eligibility of presidential candidates. Third, decision makers repeatedly mused about how useful it would be if the Supreme Court offered a clear definition of a “natural born citizen.” This suggests that executive and judicial actors are uncomfortable with non-federal judicial resolution of a constitutional claim like this one.

Finally, this Article offers a recommendation. After three consecutive presidential election cycles with time-consuming and costly litigation, it may well be time to amend the Constitution and abolish the natural born citizen requirement. Amending the Constitution is admittedly no simple task. But perhaps an uncontroversial amendment would find broad support in order to avoid delays and legal challenges seen in recent presidential primaries and elections.

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“Ruling clears way for Pasadena voting rights suit to go to trial”

Houston Chronicle:

A federal judge has denied Pasadena’s request to throw out a lawsuit challenging its controversial city council redistricting plan, which a group of Hispanic and Latino residents alleges dilutes the voting rights of the suburb’s growing minority population.

Judge Lee Rosenthal’s ruling Wednesday after a roughly two-hour court hearing means the case continues toward trial, which Rosenthal has tentatively set for November.

 Wednesday’s session was one of the first significant hearings in the voting rights case, which has received national attention as emblematic of modern-day battles over the issue more than 50 years after the Voting Rights Act was passed.

The city had asked Rosenthal to rule on a motion for summary judgment in favor of the city’s 3-year-old method of electing the council, which called for races for six single-member seats and two at-large seats, stating that the plan allows the Hispanic minority population the opportunity to elect four members.

Rosenthal rejected that argument, stating that the new method creates a majority of Hispanic citizens of voting age in three districts, compared to four in the previous election system, when there were eight single-member districts.

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“County Votes To Remove Planning Commission Member”

Interesting story out of Reno:

Washoe County Planning Commission Member Thomas Daly was removed from his seat yesterday by the Washoe Board of County Commissioners.

At issue was Daly’s opinion article last spring in the Reno Gazette-Journal in which he expressed opposition to a development near Mt. Rose highway.

While some said that Daly was exercising his First Amendment rights and advocating for his constituents, the county argued that that he violated rules governing his role on the commission and the due process rights of the developer.

I see a possible First Amendment lawsuit in the offing.

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“WMP/CRP Special Report Outside Group Activity, 2000-2016”

New report highlights:

  • There has been a vast increase in the volume of advertising sponsored by outside groups between 2000 and 2016.
  • The share of ads sponsored by outside groups between 2000 and 2016 has increased dramatically.
  • Whereas 527 organizations dominated advertising in 2004, super PACs now sponsor the most outside group advertising.
  • Dark money groups (also known as non-disclosing groups) have been a consistent presence since 2000 and are much more active before the FEC’s 60-day reporting window. The overall volume of ad buys from dark money groups has increased in recent cycles, and even though the share of ads from dark money groups has declined relative to super PACs, their raw ad totals remain high.
  • The vast majority of groups are active in a single election cycle.

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“Hillary Clinton is exploring the outer limits of fundraising like no presidential nominee ever has”

LAT:

If there were a moment in this presidential race when Hillary Clinton could act on her stated outrage over the obscene amount of money in politics, it is probably now, having eclipsed her rival Donald Trump in terms of cash in the bank and blocked off his most direct paths to victory.

But Clinton isn’t tapping the brakes. She is instead on an extended tour through the nation’s elite enclaves — from Laguna Beach to the Hamptons, Martha’s Vineyard to Magic Johnson’s house in Los Angeles – in an unrestrained fundraising blitz that makes even some supporters chafe.

The price of entry at several of the stops, such as Monday’s dinner at the Beverly Hills home of entertainment mogul Haim Saban, is $50,000 per person. On the Vineyard on Saturday, Clinton netted roughly $2 million at a single cocktail party, then darted off to a small dinner event at a billionaire’s home that generated another $1 million.

By midweek, the Clinton war chest had grown by many millions more, as Clinton hopscotched on a three-day California swing from Johnson’s house to the Saban affair and then to the home of Justin Timberlake and Jessica Biel, where Jennifer Aniston, Jamie Foxx and Tobey Maguire also showed up. Then it was off to the Bay Area for multiple events, including one hosted by Apple Chief Executive Tim Cook.

Along the way, Clinton’s campaign is pushing the boundaries of fundraising further than any presidential nominee ever has. She has seized on loose federal campaign financing enforcement to substantially drive up the amount of money that can be accepted from the wealthiest donors. And her campaign has also taken advantage of GOP disarray to build a considerably more aggressive network of state and federal committees that often work merely as pass-throughs to step around legal donation limits.

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Helpful from Kevin Drum on Hillary, the State Department, and Access

Kevin responds at Mother Jones to my USA Today oped. Here’s the key part:

This is fine. If the beef with Hillary is that she’s an ordinary politician who’s more likely to see you if you’re (a) important, (b) a party wheelhorse, and (c) an important donor, then I have no argument. I also have no argument that this is unseemly.

But it’s also something I can’t get too upset about. It’s not just that everyone does this. It’s not just that everyone in American politics does this. It’s the fact that everyone, everywhere, throughout all of human history has done this. It’s just the way human societies work. I’m all in favor of trying to reduce the influence of money on politics, but I doubt there’s any way to truly make much of a dent in it.And as I’ve mentioned before, I don’t consider it one of our nation’s biggest problems anyway….

If you want to criticize the outsize influence of the connected and powerful, that’s fine. If you want to criticize Hillary Clinton for being an ordinary part of this system—as Bernie Sanders did—that’s fine. (As long as you’re not also part of that same system, of course.) But is there some kind of special scandal associated with Hillary in the State Department? I sure don’t see it.

This is nice and clarifying. I agree there is no special scandal associated with Hillary at the State Department. It is business as usual for our politicians.

And that’s the problem.

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“Donald Trump Used Campaign Donations to Buy $55,000 of His Own Book”

Daily Beast:

Paul Ryan (not that one), of the nonpartisan nonprofit Campaign Legal Center, said that Trump would have to forgo accepting royalties for sales on the book in order for the transaction to be legal, under Federal Election Committee rules.

“It’s fine for a candidate’s book to be purchased by his committee, but it’s impermissible to receive royalties from the publisher,” Ryan said. “That amounts to an illegal conversion of campaign funds to personal use. There’s a well established precedent from the FEC that funds from the campaign account can’t end up in your own pocket.”

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North Carolina County Considers Armed Civilians to Patrol Polling Places

Wish this Gannett report was a joke:

The highest appointed elections officer in Henderson County has explored deputizing civilians to patrol the polls on Election Day.

At an Aug. 16 public meeting, Bob Heltman, chair of the Henderson County Board of Elections, discussed the idea of a “posse comitatus,” in which civilians would be deputized and armed to serve the sheriff. He said he asked the sheriff whether such a posse could patrol the polls, but he has since discovered the idea is unfeasible.

“‘I said ‘have you heard of a posse comitatus? What’s the story?”” he said. “Well, the net result of all that is there’s no time to even try to do it.”

Heltman, who was appointed to the board five years ago by the Republican party, said he discussed the idea as part of the board’s safety plan to prevent terrorism, but he has abandoned it.

This is a natural consequence of Trump’s election rigging talk.

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6th Cir., in Thoughtful J. Sutton Opinion, Upholds Ban on Endorsements by Judicial Candidates

This strikes me as an exceptionally thoughtful opinion, upholding some judicial campaign regulations and striking down others.

It also shows how the Supreme Court’s Williams-Yulee decision has changed the calculus on which judicial campaign regulations can survive First Amendment attack.

Here’s a bit from the opinion upholding the ban on endorsements in other races:

Because endorsements often are “exchanged between political actors on a quid pro quo basis,” id., the endorsements clause is narrowly tailored to Kentucky’s compelling interest in preventing judges from becoming (or being perceived as becoming) part of partisan political machines. As long as Kentucky “does not regulate speech with regard to any underlying issues,” it may target “the act of endorsement itself, which . . . is a direct expression of bias in favor of or against potential parties to a case, or at the very least, damages the appearance of impartiality.” Wersal v. Sexton, 674 F.3d 1010, 1026 (8th Cir. 2012). A ban on such endorsements also guards against the risk that, once a judge is elected, he will not be able to (and he will not be perceived as being able to) referee disputes involving elected officials he did or did not endorse. The clause does not suffer from the too-much and too-little coverage problems that the speeches and contributions clauses do. The plaintiffs have not identified any protected speech banned by the endorsements clause that makes it over-inclusive. It does not prohibit speech in opposition to one’s own opponent any more than it prohibits “endorsing” oneself. Yet it does ban the endorsement of a candidate in a different race, an act that, like the personal solicitations in Williams-Yulee, signals the judicial candidate’s “active[] engage[ment] in political campaigns.” Wolfson, 811 F.3d at 1184 (upholding Arizona’s endorsement clause). While the clause is narrowly drawn, it is not perfectly drawn. It has a modest underinclusivity problem because, as the plaintiffs point out, and the Commentary to Canon 5 confirms, a judicial candidate may “privately express[] his or her views on judicial candidates or other candidates for public office.” True enough. But private expressions of approval or disapproval create far fewer quid pro quo appearance problems than the candidate formally putting his name and reputation behind another. The endorsements clause “aims squarely at the conduct most likely to undermine” non-partisanship in judicial elections and is thus narrowly tailored to that interest. Williams-Yulee, 135 S. Ct. at 1668.

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“Even Trump and Clinton need big-money donors: Column”

Coinciding with the paperback release of Plutocrats United, I have written this oped for USA Today. It concludes:

None of these things — Trump courting super PAC donors, Clinton getting paid by the wealthiest companies as a private citizen, or Clinton as secretary of State giving access to big donors to her foundation — amounts to criminal activity or even what we might term corruption. In the Supreme Court’s Citizens United case, Justice Anthony Kennedy, writing for the Court, declared that “ingratiation and access are not corruption.”

But there’s still something wrong with a political system in which access goes to the highest bidder. The Clinton team is quick to argue that there’s no evidence the meetings Clinton gave to big donors led to any official actions. But those donors get more than just a picture with a candidate; they get a chance to make their pitch for the policies they want pursued or blocked, a pitch the rest of us don’t get to make because we don’t have hundreds of thousands of dollars or more to contribute to campaigns.

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Federal Court, on 2-1 Vote, Lets Maryland Partisan Gerrymandering Claim Go Forward

A three-judge court, on remand in Shapiro v. McManus, has ruled 2-1 that the first amendment-based partisan gerrymandering claim brought against Maryland’s sixth congressional district states a valid claim and now proceeds further (to summary judgment or trial). The opinion is important because, like another case out of Wisconsin and a third (already before the Court from North Carolina) will present a new Supreme Court with different theories under which the Court may finally rein in more egregious political gerrymanders.  And this particular opinion is written by Judge Niemeyer, who, as Steve Klepper notes, is a respected conservative judge who serves as a feeder for clerks to the more conservative Supreme Court Justices.

There’s bound to be some jockeying and competition among the lawyers in the three cases, which will be presenting alternative theories as to how to separate permissible from impermissible consideration of political party data in redistricting.

Here is the key holding of the majority:

When applying First Amendment jurisprudence to redistricting, we conclude that, to state a claim, the plaintiff must allege that those responsible for the map redrew the lines of his district with the specific intent to impose a burden on him and similarly situated citizens because of how they voted or the political party with which they were affiliated. In the context of redistricting, this burden is the injury that usually takes the form of vote dilution. But vote dilution is a matter of degree, and a de minimis amount of vote dilution, even if intentionally imposed, may not result in a sufficiently adverse effect on the exercise of First Amendment rights to constitute a cognizable injury. Instead, to establish the injury element of a retaliation claim, the plaintiff must show that the challenged map diluted the votes of the targeted citizens to such a degree that it resulted in a tangible and concrete adverse effect. In other words, the vote dilution must make some practical difference. Finally, the plaintiff must allege causation — that, absent the mapmakers’ intent to burden a particular group of voters by reason of their views, the concrete adverse impact would not have occurred.

From the dissent:

But even accepting that the First Amendment supplies the relevant constitutional principle, and even assuming that official misconduct may be afoot on the discrete facts of this case, I cannot responsibly endorse Plaintiffs’ proposed standard (or otherwise approve continued litigation in this matter) unless I first conclude that the standard would be viable and manageable throughout the life of this case and beyond the facts of this case. Two substantial hurdles prevent me from drawing such a conclusion. The first hurdle relates to precedent: the Supreme Court has expressed some degree of tolerance for partisanship in the districting context, but that tolerance creates intractable line-drawing problems. A per se rule flatly prohibiting state legislatures from taking account of voting history or voter affiliation in their mapmaking would streamline the preliminary analysis, but it is not clear that such a rule is available in light of controlling law (or desirable in light of competing interests and objectives).

Even were this Court to implement such a per se rule, there remains a second, insurmountable barrier. Courts are simply not equipped to ascertain those unusual circumstances in which redistricting inflicts an actual, measurable burden on voters’ representational rights. Yet that is precisely what the Supreme Court has required. Compare Davis v. Bandemer, 478 U.S. 109, 127 (1986) (plurality opinion) (“We . . . agree . . . that in order to succeed the . . . plaintiffs were required to prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.”), and Vieth, 541 U.S. at 295 (plurality opinion) (“This Court may not willy-nilly apply standards—even manageable standards—having no relation to constitutional harms.”), with League of United Latin Am. Citizens [LULAC] v. Perry, 548 U.S. 399, 418 (2006) (Kennedy, J.) (“[A] successful claim attempting to identify unconstitutional acts of partisan gerrymandering  must . . . show a burden, as measured by a reliable standard, on the complainants’ representational rights.”). Courts cannot reliably distinguish between what Plaintiffs would term impermissible “vote dilution” and the ordinary consequences of an American political process that is organic, fluid, and often unpredictable.

I think the dissent has the better of the argument that framing this injury as a First Amendment one rather than an Equal Protection one cannot solve the line-drawing problems that the Court has recognized in cases such as Vieth. That said, the Court could now be willing (especially with a 9th Justice appointed by a Democratic president) to engage in the line drawing, and this First Amendment theory offers a nice fig leaf for saying one is not overturning any cases or precedent to now allow the policing of partisan gerrymandering claims.

This case now moves to the next stage, and I expect action on this issue will shift to the North Carolina partisan gerrymandering case, which is now closer to Supreme Court review, where I expect at least amici to offer Judge Niemeyer’s theory as a plausible way to resolve these cases.

[This post has been updated.]

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“Bernie Sanders’s New Political Group Is Met by Staff Revolt”

NYT:

Senator Bernie Sanders of Vermont, his presidential campaign now behind him, will look to advance the movement he built during the Democratic primary race, with the public unveiling on Wednesday of a political organization focused on addressing economic inequality and taking on special interests.

But while the establishment of the new group, Our Revolution, has been eagerly awaited by many of his most ardent supporters, it has been met with criticism and controversy over its financing and management.

A principal concern among backers of Mr. Sanders, whose condemnation of the campaign finance system was a pillar of his presidential bid, is that the group can draw from the same pool of “dark money” that Mr. Sanders condemned for lacking transparency.

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