“How a large-scale effort to register black voters led to a crackdown in Tennessee”

Amy Gardner for WaPo:

What played out in Tennessee illustrates the messiness that has accompanied some large-scale efforts to draw new Democratic voters into the electorate, providing an opening for critics to push for stricter rules. The fallout is part of a national clash between the two parties over access to the polls — one fueled by energized efforts on the left to expand the voting pool and new limits backed by Republican lawmakers, who often echo President Trump’s unsubstantiated claims of widespread fraud.

There is no definitive account of what exactly went wrong in Tennessee last year. Republicans, who control all arms of the government — including the state and county election commissions — did not formally investigate the matter before moving to pass the new law. As a result, there is no official account of how many applications were faulty, the source of the problems and whether the Tennessee Black Voter Project was to blame.

Local elections officials said the vast majority of problems were basic omissions, often in a single field on the forms — not the more-egregious examples that raised suspicions of fraud.

Nonetheless, as the issue played out in the state legislature, lawmakers focused on forms with fake names, or those of dead people or ineligible felons. They also used unverified and inconsistent figures to emphasize the threat of potential fraud, which has long been illegal in Tennessee, to further their case to impose new penalties on forms with mistakes and omissions.

The new law has prompted two federal lawsuits accusing Tennessee of voter suppression.


“Republicans and the Voting Rights Act”

Michael Morley has posted this draft on SSRN (forthcoming, Tulsa Law Review). Here is the abstract:

This invited essay reviews Jesse H. Rhodes’s book Ballot Blocked: The Political Erosion of the Voting Rights Act. The book’s main thesis is that Republican officials from all branches of government “adopted a sophisticated long-term strategy” of publicly supporting the Voting Rights Act throughout the half-century following its enactment while surreptitiously attempting to weaken and undermine it. This Essay critiques the book’s pervasive tendency to present most Republicans from across all branches of government throughout a period of over 50 years as acting in an almost monolithic fashion to achieve their supposedly shared goal of secretly undermining the Act.

Rather than attempting to undermine the Voting Rights Act, Republican administrations simply interpreted and enforced it somewhat differently than Democratic administrations – a common occurrence with many statutes. Ironically, Republican interpretations sometimes led to broader enforcement of the Act. Moreover, many of the considerations upon which Rhodes relies as evidence of Republicans’ supposed strategy to secretly erode the Act apply equally to Democratic administrations. In short, there is ample reason to believe both Democratic and Republican administrations faithfully enforced the Voting Rights Act, albeit sometimes according to differing interpretations and priorities.


Kobach Says He “Turned Down” Immigration Czar Job, Contrary to Report in the NYT

Kris Kobach said Wednesday he turned down an immigration adviser’s position at Homeland Security because it doesn’t carry enough weight to be able to solve the border crisis.” No denial in this Wash. Times piece of his ten demands for the job.

NYT tells a slightly different story:

Mr. Cuccinelli and Kris Kobach, the former Kansas secretary of state, were both under consideration for the immigration role. But Mr. Cuccinelli was always seen within the White House as the favorite, and Mr. Kobach did not help his case with Mr. Trump and some of his advisers with a list of the 10 “requirements” he had for taking the job, including access to a government jet 24 hours a day, weekends off with his family in Kansas and a promise to be nominated for Mr. McAleenan’s job by November if he wanted it.


“Faked Pelosi videos, slowed to make her appear drunk, spread across social media”


Distorted videos of House Speaker Nancy Pelosi (D-Calif.), altered to make her sound as if she’s drunkenly slurring her words, are spreading rapidly across social media, highlighting how political disinformation that clouds public understanding can now spread at the speed of the Web.

The video of Pelosi’s onstage speech Wednesday at a Center for American Progress event, in which she said President Trump’s refusal to cooperate with congressional investigations was tantamount to a “coverup,” was subtly edited to make her voice sound garbled and warped. It was then circulated widely across Twitter, YouTube and Facebook.

One version, posted by the conservative Facebook page Politics WatchDog, has been viewed more than 1.4 million times, been shared more than 32,000 times, and garnered 16,000 comments with users calling her “drunk” and “a babbling mess.”…

Analyses of the video by Washington Post journalists and outside researchers indicate that the video has been slowed to about 75 percent of its original speed. To possibly correct for how that speed change would deepen her tone, the video also appears to have been altered to modify her pitch, to more closely resemble the sound of her natural speech.

The altered video’s spread highlights the subtle way that viral misinformation could shape public understanding in the run-up to the 2020 election. Spreaders of misinformation don’t need sophisticated technology to go viral: Even simple, crude manipulations can be used to undermine an opponent or score political points.


Smartphone Voting in Denver

Steven Rosenfeld:

Two days after May’s city elections, Denver’s Elections Division held a low-profile audit of key parts of America’s most radical new voting system.

Over several weeks, 119 residents who were overseas had been using their smartphones to identify themselves and mark and submit their ballots online via blockchains, an encryption and storage method. The voters would get an emailed receipt listing their ballot choices, and later a survey asking what they thought about smartphone voting.

Denver and its technology and philanthropic partners were not just showing how they served overseas voters. They were presenting an unprecedented digital evidence trail, as there had never been a similar open audit of ballot receipts, ballot images and voting data kept on blockchains. The city was showing how far smartphone voting had come—an internet system whose proponents envision millions of Americans eventually using, but one that critics maintain is inherently untrustworthy.


“Washington State Supreme Court upholds fines for 2016 faithless electors”

Derek Muller:

In the latest of a string of litigation surrounding faithless electors, the Washington State Supreme Court has issued its decision in In re Guerra, here. Four electors cast votes for candidates other than Hillary Clinton and Tim Kaine; all four were fined $1000 each pursuant to state law. Three appealed the decision. In an 8-1 decision, the Court upheld the fines.


“The Technology 202: Republicans make alleged conservative bias top priority at election security hearing”


Google, Facebook and Twitter executives came to Capitol Hill to testify about election security. Instead they faced a grilling about whether their platforms are biased against conservatives.

A string of Republicans on the House Oversight and Reform Committee skipped questions about how the companies were tackling disinformation campaigns or preventing Russians from purchasing political ads on their platforms in the run-up to the 2020 election. They were more interested in whether Facebook and Twitter were “shadow-banning” — quietly blocking or restricting — conservatives’ accounts on their platform….

The hearing highlights how Republicans have made it their default playbook to hammer the tech companies on this single issue over all others — even when faced with pressing national security concerns about foreign influence campaigns ahead of the 2020 elections. But it also underscores how, even in a divided Washington, both sides are threatening to crack down on Big Tech — though they have very different motivations for doing so. 


“Facebook Curbs Incentives to Sell Political Ads Ahead of 2020 Election Company; leaders considered dropping such ads, which are now viewed as a headache”


Facebook said it stopped paying commissions to employees who sell political ads, as the tech giant overhauls how it engages with campaigns ahead of elections in 2020.

Once seen as a growth area, political ads are now viewed within Facebook as more of a headache, according to former employees and campaign staffers who work on digital strategies. In the wake of revelations about Russian efforts to influence the 2016 election, senior leaders at the company debated whether it should cease running political ads entirely, former employees familiar with the discussions said. Chief Executive Mark Zuckerberg made the final call to stay in the business, though changes will be made to how it operates, one former employee said.

Scrutiny of Facebook’s role in the political process has only intensified over the past 18 months, with allegations that its platforms have been used for attempted election manipulation efforts on six continents.
Facebook’s new approach to political ad sales is designed to eliminate incentives for employees to push a more-is-better strategy with campaigns. The ad-buying portal for campaigns is now largely self-serve, with Facebook staffers available to help campaigns register to buy ads, assist if certain ads are stuck in review and provide other basic customer service. Sales employees are no longer paid based on reaching or exceeding goals related to ads purchased promoting either a candidate or politically tinged messages in the U.S. and abroad, said Katie Harbath, Facebook’s global elections public policy director.


“How the Rural-Urban Divide Became America’s Political Fault Line”

NYT’s The Upshot:

It’s true across many industrialized democracies that rural areas lean conservative while cities tend to be more liberal, a pattern partly rooted in the history of workers’ parties that grew up where urban factories did.
But urban-rural polarization has become particularly acute in America: particularly entrenchedparticularly hostile, particularly lopsided in its consequences. Urban voters, and the party that has come to represent them, now routinely lose elections and power even when they win more votes.

Democrats have blamed the Senate, the Electoral College and gerrymandering for their disadvantage. But the problem runs deeper, according to Jonathan Rodden, a Stanford political scientist: The American form of government is uniquely structured to exacerbate the urban-rural divide — and to translate it into enduring bias against the Democratic voters, clustered at the left of the accompanying chart.

Yes, the Senate gives rural areas (and small states) disproportionate strength. “That’s an obvious problem for Democrats,” Mr. Rodden said. “This other problem is a lot less obvious.”


“Election fraud? Florida won’t pledge to look for voters registered in multiple states”


An effort to clamp down on potential voter fraud in Florida has been bogged down by an unlikely source: the state’s Republican-controlled administration.

More than a year ago, Florida legislators gave permission to the nation’s third-largest state to join a multistate partnership to flag people registered to vote in more than one state.

Florida, a haven for semi-residents who trek yearly from the North and Midwest, has long been hit with reports of people possibly voting in more than one state. Republicans — including President Donald Trump — have complained about voter fraud despite a lack of evidence.

A top state election official who works for Gov. Ron DeSantis told local election supervisors on Wednesday that it wasn’t clear when — or if — the state would become a member of the Electronic Registration Information Center, or ERIC. Member states exchange voting information and look for duplicate registrations.


“Congressional leadership PACs continue to subsidize lavish lifestyles”


new report today released by Issue One and Campaign Legal Center (CLC) shows that instead of doling out funds to political allies, members of Congress routinely use leadership PAC funds to pay for expensive meals, rounds of golf, and luxury hotel stays — often under the guise of fundraising. During the final three months of 2018 alone, some members of Congress used leadership PACs to pay for trips to Puerto Rico and London, dues to exclusive social clubs, tickets to the Churchill Downs racetrack (home of the Kentucky Derby), and stays at the Trump International Hotel in Washington, D.C. — all while not giving the majority of their funds away to other candidates.

This continues the trend identified by the groups’ original July 2018 report that revealed that less than 50% of overall leadership PAC spending in recent years – according to data from the Center for Responsive Politics – has actually gone toward the purposes originally approved by the Federal Election Commission (FEC) – namely, contributions to candidates and political groups.


Don Palmer, Now on the EAC, Assisted Christian Adams and PILF with “Alien Invasion” Report, Currently the Subject of Defamation/Voter Intimidation Suit

Tierney Sneed from TPM:

Before he was named by President Trump to the U.S. Elections Assistance Commission, Donald Palmer, a former GOP-appointed secretary of the Virginia State Board of Elections, assisted in the creation of sensational voter fraud reports that prompted a defamation lawsuit, documents released in the litigation Friday revealed.

Palmer helped devise an approach to collecting certain voter registration data, which was then used to claim that there were thousands of noncitizens on Virginia’s voter rolls and that many of them had voted, according to the documents. He also helped edit a draft of the report, and he additionally flagged for his collaborators that a Virginia state election official who was resisting turning over the data had previously worked for a civil rights organization.

“Of course, this is the pool of talent of the current governor,” Palmer allegedly wrote,  referring to then-Gov. Terry McAuliffe (D).
The revelations came in the deposition of J. Christian Adams, whose group, the Public Interest Legal Foundation, released the reports. The lawsuit’s plaintiffs — who include citizens who were falsely identified in the reports’ materials as noncitizens who had illegally registered to vote — have accused Adams’ of withholding discovery and are now seeking to re-open his deposition.

In his original deposition, Adams claimed that he and Palmer worked “collaboratively”  ahead of the release of the first iteration of the October 2016 report, known as “Alien Invasion.” A follow-up report, “Alien Invasion II,” was released in May 2017….

According to Adams, he discussed with Palmer the “availability” of so-called “noncitizen cancellation records” for PILF to obtain from elections officials. Adams later sent Palmer a draft of the report, which Palmer commented on with edits, according to the deposition.

Adams got combative, however, when he was asked whether he relied on Palmer’s assessment in deciding to label the individuals identified in the reports as noncitizens. Since the reports were released, elections experts have noted that honest mistakes or administrative errors could lead to the mistaken removal of citizens for citizenship status issues….

A volunteer who was working on the project wrote in October 2016 to another potential collaborator — who had expressed concern because he knew someone identified in the records — that 10-15 percent of the individuals are “accidentals” meaning “citizens had trouble with the forms.” The volunteer, Steven Albertson claimed in his own deposition he believed Adams was the source of the estimate.


“Watchdog Group Files Complaint Over Donation to Trump Super PAC by Canadian Billionaire’s Company”


A campaign finance watchdog group filed a complaint on Tuesday against a Canadian billionaire alleging that he violated a federal ban on contributions by foreigners when his United States-based company donated $1.75 million last year to a political committee supporting President Trump’s agenda.

The complaint was filed by the watchdog group, the Campaign Legal Center, with the Federal Election Commission against Barry Zekelman, the chief executive of Zekelman Industries, North America’s largest steel tube manufacturer. Mr. Zekelman has pushed the Trump administration to take steps that help block the import to the United States of steel tube made by his competitors.

Mr. Zekelman, whose efforts to influence federal policy on steel tariffs was detailed in a story in The New York Times, was invited to a dinner with Mr. Trump at the Trump International Hotel in April 2018, after the first contribution to the Trump-affiliated committee, America First Action Super PAC, for $1 million.

Two more contributions — first for an additional $250,000 and then $500,000 more — followed during 2018, making Zekelman Industries one of the single biggest contributors to Mr. Trump’s political causes.

The contribution was made by Wheatland Tube LLC, a Chicago-based company that is owned entirely by Zekelman Industries, which Mr. Zekelman and his two brothers control. Mickey McNamara, general counsel at Zekelman Industries and president of Wheatland Tube, declined to comment on Tuesday about the Campaign Legal Center’s filing.


“Prosecutors: Michael Cohen campaign finance probe is active”


Prosecutors aren’t quite finished investigating campaign finance violations by President Donald Trump’s former personal lawyer.

U.S. District Judge William H. Pauley III agreed Tuesday to keep search warrant materials related to the investigation of Michael Cohen under seal until July 15 after prosecutors submitted a letter last week explaining why the probe continues. That letter remains sealed.

Pauley cited “ongoing aspects” of the government’s investigation as he directed prosecutors to identify in July what individuals or entities remain subject to continuing probes and explain any need for continued redaction.


In Important Step and In Rare Bipartisan Fashion, Federal Election Commission Unanimously Approves Measure to Provide Free or Reduced-Cost Cybersecurity Protection for American Campaigns [Subject to Disclosure of, and Limits on Sources of Funding for Effort (That Part’s Not Unanimous)]

This is very good news. You can find the advisory opinion here. It is unanimous, except the Republican commissioners would not have imposed the disclosure requirements or source limitations.

From Chair Weintraub’s letter:

Under the unusual and exigent circumstances presented by your request and in light of the demonstrated, currently enhanced threat of foreign cyberattacks against party and candidate committees, the Commission approves DDC’s proposed activity.

The Act and Commission regulations prohibit foreign nationals from making contributions, expenditures, donations, or disbursements in connection with federal, state, and local elections. See 52 U.S.C. § 30121(a)(1); 11 C.F.R. § 110.20. This prohibition is intended to “exclude foreign citizens from activities intimately related to the process of democratic self-government.” See Bluman v. FEC, 800 F. Supp. 2d 281, 287 (D.D.C. 2011) (internal quotations omitted), aff’d mem., 565 U.S. 1104 (2012). Such exclusion “is part of the sovereign’s obligation to preserve the basic conception of a political community.” Id. (emphasis added).

The Commission has approved certain advisory opinion requests to take particular, carefully defined, and limited actions to address urgent circumstances presenting a verified, heightened risk of physical or malicious digital harm. See Advisory Opinion 2018-15 (Wyden); Advisory Opinion 2017-07 (Sergeant at Arms). Here, we have such circumstances. The Commission concludes that the current threat of foreign cyberattacks presents unique challenges to Commission enforcement of section 30121, and that this highly unusual and serious threat militates in favor of granting DDC’s request.

The request notes that recent election cycles have seen actual and attempted foreign cyberattacks on party and candidate committees on an unprecedented scale.9 Foreign cyberattacks that entail disbursements by foreign nationals in connection with American elections are violations of section 30121. But foreign cyberattacks, in which the attackers may not have any spending or physical presence in the United States, may present unique challenges to both criminal prosecution and civil enforcement.10 Thus, the Commission recognizes that fulfilling its “obligation to preserve the basic conception of a political community” under section 30121 cannot hinge solely on prosecution of foreign violators abroad. Effective enforcement of that provision to protect American elections from urgent cyberthreats also requires that countermeasures be taken within the United States. DDC’s proposal is a unique response to such threats. DDC proposes to offer free or reduced-cost cybersecurity services, including facilitating the provision of free or reduced-cost cybersecurity software and hardware from technology corporations, to federal candidates and parties according to a pre-determined set of criteria. DDC is formed in a bi-partisan fashion, co-led by former campaign managers of Republican and Democratic presidential campaigns. AOR004. DDC proposes to make its services available on a nonpartisan basis and “not to benefit any one campaign or political party over another or to otherwise influence any federal election.” AOR002. DDC plans to offer its services not only to political committees, but also to “think tanks” and other public policy-focused NGOs. DDC Comment (April 5, 2019) at 3. DDC, a 501(c)(4) organization which its counsels represented will operate like a 501(c)(3),
would not be prevented from accepting donations from foreign nationals because of its tax status.

However, because this advisory opinion is premised on the threat of foreign cyberattacks against party and candidate committees and the implications those attacks have on Commission enforcement of section 30121, the Commission’s approval is conditioned on DDC’s commitment
not to accept any donations from foreign nationals, and its adherence to the representations described above.

Approval is conditioned on DDC’s public disclosure of all donations and, going forward, disclosure of new donations by the first day of the month following when they were received;11 and its commitment to accept donations only from individuals, foundations, and entities that have elected C corporation status for federal income-tax purposes.12

[Footnote 12: Vice Chairman Petersen and Commissioner Hunter approve this Advisory Opinion, but do not condition their approval on these disclosure requirements and funding restrictions.}


“Washington Governor Jay Inslee signs law ending prison gerrymandering”


Today, Washington State Governor Jay Inslee signed a bill into law ensuring that people in state prisons will be counted as residents of their home addresses when new legislative districts are drawn, making Washington the fifth state to end the practice known as prison gerrymandering.

The Washington State Constitution states that, for the purposes of voting, people in prison should be counted as residents of their hometowns. However, the Census Bureau counts incarcerated people as residents of the places where they are incarcerated. As a result, when Washington State used Census counts to draw past legislative districts, it unintentionally enhanced the weight of votes cast in districts containing prisons — at the expense of all other districts in the state.

“Washington State’s new law recognizes that ending prison gerrymandering is an important issue of fairness,” said Aleks Kajstura, Legal Director of the Prison Policy Initiative, who was present when the bill was signed. “All districts — some far more than others — send people to prison, but only some districts containprisons. Counting incarcerated people as residents of the prison gives extra representation to the prison district, dilutes the votes of everyone who does not live next to the state’s largest prison, and distorts the constitutional principle of one person, one vote. This new law offers Washington voters a fairer data set on which future districts will be drawn.”

The legislation, passed as SB 5287, applies only to redistricting and will not affect federal or state funding distributions.


“‘This was a steal’: Campaign real estate deal that ‘thrilled’ Trump could be illegal”

Washington Examiner:

President Trump was “thrilled” that his campaign acquired Northern Virginia office space at “bargain basement” rates, a campaign official told the Washington Examiner in an interview in the plush 14th floor offices overlooking the Potomac River from Arlington, Va.

But campaign finance specialists say the “steal” could violate election law, which views below-market rates for rent as an illegal in-kind campaign donation.


“Finding Common Ground on Voter ID Laws”

Gene Mazo has posted this draft on SSRN (forthcoming, University of Memphis Law Review). Here is the abstract:

Voter ID laws are currently in force in 35 states. In most states, these laws have been divisive and controversial. Our political parties see the world differently when it comes to voter ID requirements. Republicans are concerned with election integrity and claim that voter ID laws are necessary to prevent fraud. Democrats liken voter ID laws to the poll taxes and literacy tests of the past and claim these laws disenfranchise minorities, the elderly, and the poor. Because the perceptions of voter fraud and the conclusions about the effects of voter ID laws differ between the parties, voter ID laws have been the subject of intense debate and subject to multiple court challenges. 

To move the conversation forward, this Article seeks to forge a new path. It first recounts the history of voter ID laws, looks at their justifications, and probes their popular support. It then discusses the litigation involving these laws and examines the scholarly literature concerning their effects. At least some of this literature suggests that voter ID laws may have less impact than is commonly believed, both in terms of preventing voter fraud and in terms of suppressing turnout. As such, this Article explores a way that proponents and opponents of these laws could be brought together to achieve their common goals: protecting the integrity of American elections while not making it any more difficult for ordinary citizens to participate in the democratic process. This Article offers a proposal for how these twin goals could be achieved with a voter ID requirement.

Any state mandating a voter ID requirement would have to agree to take on the burden of providing voter IDs free of charge to all citizens when they register to vote, and it would have to ease the barriers to voter registration. The state’s goal in doing so would be to broaden the electorate in the short and long term. Second, the state would have to make sure that its voter ID requirement was population-neutral. This means the requirement would have to be designed so that it does not discriminate against any group. Third, states requiring voter IDs would have to take steps to ensure that voters who lose or forget their IDs have a safety net and that there is still a way for them to cast a ballot, if they can later prove their identity.

The best way for a state to implement all of these reforms would be to delay the implementation of its voter ID requirement until after it runs a multi-year marketing and public relations campaign educating its citizens about its new requirement. In short, this Article argues that voter ID laws should be used to enlarge, rather than restrict, a state’s voting electorate, and ultimately, to strengthen a state’s democratic base.


Breaking: Federal District Court Allows Suit Against Georgia’s Use of Unsecure DRE Machines without a Paper Trail to Go Forward, Partially Denying Motion to Dismiss

Important opinion and order in an important case:

In sum, the Plaintiffs have alleged that Defendants were aware of serious security breaches in the DRE voting system and failed to take adequate steps to address those breaches. Notably, even after Mr. Lamb first alerted the State about his access of the voting system, he and another cybersecurity expert were able to access the system again about six months later. (Curling Complaint, Doc. 70 ¶ 47.)

Plaintiffs allege that Defendants have failed to take action to remedy the DRE system’s vulnerabilities. (Id. ¶¶ 46, 61, 62, 72.) And they allege that this failure, in turn, impacts the integrity of the voting system and their ability as citizens to rely upon it when casting votes in this system. (Id.)

At the motion to dismiss stage, Plaintiffs’ allegations that Defendants’ continued use of unsecure DREs infringe the Plaintiffs’ fundamental right to vote are sufficient to state a plausible due process violation. Duncan, 657 F.2d at 702-3 (“the federal courts have not hesitated to interfere when state actions have jeopardized the integrity of the electoral process” and when “confronted with an officially-sponsored election
procedure which, in its basic aspect, was flawed”).

Here, Plaintiffs have adequately alleged that their Fourteenth Amendment rights to Due Process and Equal Protection have been burdened – i.e., that the State’s continued reliance on the use of DRE machines in public elections likely results in “a debasement or dilution of the weight of [Plaintiffs’] vote[s],” even if such conduct does not completely deny Plaintiffs the right to vote. Bush v. Gore, 531 U.S. 98, 105 (2000) (quoting Reynolds, 377 U.S. at 555). Accordingly, the Court DENIES Defendants’ Motions to Dismiss Plaintiffs’ due process and equal protection claims.


The Court recognizes that the Georgia legislature passed Act No. 24/House Bill 316, signed by the Governor on April 2, 2019, and approved funds for a new system of voting technology slated to go into effect in 2020. As the state has yet to choose which specific vendor’s proposal will be selected and implemented, how these issues will play out in the context of new voting technology remains an open question. Nonetheless, a number of elections are anticipated to take place using the current DRE system in 2019.


D.C. Circuit, Sitting En Banc, Upholds Federal Campaign Contribution Limits Applied to Bequests to Libertarian Party, with 3 Judges Partially Dissenting

Read the opinion in Libertarian National Committee v. FEC. Judge Tatel’s majority opinion begins:

When Joseph Shaber passed away he left over $235,000 to the Libertarian National Committee (LNC). This case is about when and how the LNC can spend that money. The LNC argues that the Federal Election
Campaign Act (FECA), which imposes limits on both donors and recipients of political contributions, violates its First Amendment rights in two ways: first, by imposing any limits on the LNC’s ability to accept Shaber’s contribution, given that he is dead; and second, by permitting donors to triple the size of their contributions, but only if the recipient party spends the money on specified categories of expenses. Scrutinizing each provision in turn, we find no constitutional defects and reject
the LNC’s challenges.


Canadian Billionaire May Have Violated Foreign Contribution Ban Via Domestic Subsidiary


And Zekelman Industries made political donations in the United States — skirting or possibly violating a ban on contributions by foreigners — including $1.75 million last year to a group supporting President Trump…..

Federal Election Commission rules prohibit any foreigner from “directing, dictating, controlling, or directly or indirectly participating in the decision-making process” related to any campaign contribution, including super PACs.

Mr. Zekelman, who does not have United States citizenship, said in an interview that he did not play a role in the decision to donate. But he added that he did discuss the matter with other company executives, after a representative from America First Action approached one of Zekelman Industries’ lawyers and asked for a contribution.

“They contacted our people, our people brought it to me,” Mr. Zekelman said. “I said, great, I would love to find a way to support him.”
Mr. Zekelman said the donation was legal because the final decision was made by members of his board who are American citizens or legal residents of the United States, and the money was donated through Wheatland Tube, a United States-based subsidiary of Zekelman Industries, which he owns with his two brothers.

After The New York Times raised questions about the donation, Mickey McNamara, general counsel at Zekelman Industries and president of Wheatland Tube, said he did not recall discussing the matter with Mr. Zekelman. Mr. McNamara said he decided to make the donation without consulting with Mr. Zekelman.

In a statement, Brian O. Walsh, the president of America First Action, said the organization did not accept foreign contributions. “All contributors are expressly asked to affirm they are a U.S. citizen or permanent resident,” he said.

Adav Noti, a former associate general counsel at the Federal Election Commission, said that if Mr. Zekelman had discussed the matter with colleagues at work, he had most likely violated federal law, even if the formal decision to donate was made by others.

“This sounds pretty clearly unlawful to me,” said Mr. Noti, now chief of staff at Campaign Legal Center, which monitors election law compliance.


Report: Russians Trying to Sow Racial Violence in U.S. as Late as 2018, with Plan to “recruit African-Americans and transport them to camps in Africa ‘for combat prep and training in sabotage.'”

The race-based aspects of Russian interference efforts in U.S. politics have not gotten sufficient attention:

Russians who were linked to interference in the 2016 U.S. election discussed ambitious plans to stoke unrest and even violence inside the U.S. as recently as 2018, according to documents reviewed by NBC News.
The documents — communications between associates of Yevgeny Prigozhin, a Kremlin-linked oligarch indicted by special counsel Robert Mueller for previous influence operations against the U.S. — laid out a new plot to manipulate and radicalize African-Americans. The plans show that Prigozhin’s circle has sought to exploit racial tensions well beyond Russia’s social media and misinformation efforts tied to the 2016 election….

The documents contained proposals for several ways to further exacerbate racial discord in the future, including a suggestion to recruit African-Americans and transport them to camps in Africa “for combat prep and training in sabotage.” Those recruits would then be sent back to America to foment violence and work to establish a pan-African state in the Southern U.S., including South Carolina, Georgia, Alabama, Mississippi and Louisiana.
There is no indication that the plan — which is light on details — was ever put into action, but it offers a fresh example of the mindset around Russian efforts to sow discord in the U.S.
The blueprint, entitled “Development Strategy of a Pan-African State on U.S. Territory,” floated the idea of enlisting poor, formerly incarcerated African-Americans “who have experience in organized crime groups” as well as members of “radical black movements for participation in civil disobedience actions.”
The goal was to “destabilize the internal situation in the U.S.”


“New Washington campaign-finance law targets ‘gray money’ PACs”

Seattle Times:

For example, Conscience of the Progressives is actually funded by conservatives and last year sent election mailers to aid Republicans in swing-district legislative races. It is funded almost wholly by another PAC named Send A Message, whose prime donor is Peter Zieve, an aerospace entrepreneur who gave $1 million to support Donald Trump in 2016 and who has drawn scrutiny for expressing anti-Muslim sentiments.

Thus, an election ad by Conscience of the Progressives last year showed Send A Message PAC as the only top donor.

On the other side, New Direction PAC supports progressive candidates. In 2018, three of its top five donors were PACs, according to state campaign-finance records, including two Democratic Party spending groups. And the third PAC? Almost all of its funding came from those two same Democratic spending groups.

It’s a tactic called “gray money” and it’s a popular strategy in Washington and around the nation for shielding the flow of money. Through a series of “nesting doll” PACs, campaigns or political parties can cloak donations by individuals, corporations, industry associations or labor unions.


“Miami Candidate’s Campaign Workers May Have Tampered With Absentee Ballots”

Miami New Times:

An explosive, 150-page WhatsApp chat leaked to Miami New Times appears to show members of Miami-Dade County Commission District 5 candidate Alex Diaz de la Portilla’s 2018 campaign team discussing destroying or stealing absentee ballots from voters who selected one of Diaz de la Portilla’s opponents, Zoraida Barreiro.
In one message, a campaign worker posted an image of a ballot and joked that it had been stolen. In another text, someone took a photo of a ballot and wrote “Byebye.” In a third message, someone instructed a campaign worker to “tear up the ballot good.”

Diaz de la Portilla did not initially respond to messages from New Times this afternoon, including two on his personal cellphone.

But after this story was first published, Diaz de la Portilla texted New Times and claimed the chat logs were not associated with him in any way…

If Diaz de la Portilla’s campaign really did engage in ballot fraud, it didn’t work. The former Republican state senator came in third behind Barreiro and progressive candidate Eileen Higgins. Higgins later beat Barreiro in a runoff election and became the first non-Hispanic candidate in decades to represent the area. The Miami Herald endorsed Diaz de la Portilla in that race.


Kobach’s Demands to Be Trump’s Immigration Czar

NYT scoop:

Access to a government jet 24 hours a day. An office in the West Wing, plus guaranteed weekends off for family time. And an assurance of being made secretary of homeland security by November.

Those were among a list of 10 conditions that Kris Kobach, the former Kansas secretary of state, has given to the White House if he is to become the administration’s “immigration czar,” a job President Trump has been looking to create to coordinate immigration policy across government agencies. The list was described by three people familiar with it.

Mr. Kobach, who once served as an adviser to the hard-line immigration Sheriff Joe Arpaio and helped write an Arizona law requiring local officials to verify the citizenship of anyone they had “reasonable suspicion” to believe was an unauthorized immigrant, said he would need to be the main television spokesman for the Trump administration on immigration policy. And he said he wanted a guarantee that cabinet secretaries whose portfolios relate to immigration would defer to him, with the president mediating disputes if need be.

The list was submitted by Mr. Kobach in recent weeks as he discussed his interest in the job. Other conditions included having a staff of seven reporting to him, “walk in” privileges to the Oval Office, a security detail if deemed necessary and the title of assistant to the president.


Social Media Pollution Could Be Worse in 2020 Election

Jim Rutenberg NYT column:

The rules now in place just don’t match up with how certain groups influence voters via the internet. Thanks to savvy lobbying by tech companies, online election campaign speech remains almost entirely unregulated.

The platforms won exemptions from many campaign finance provisions by arguing that the rules would stifle their growth. They don’t have the legal requirements for ad disclaimers and disclosures — like keeping public logs of political sponsors — that television does.

That’s how the Internet Research Agency, a home for troll accounts in St. Petersburg, Russia, could spend money on Facebook pages that worked for Hillary Clinton’s defeat without having to reveal its identity.

The platforms are taking steps to change. They say they are screening and authenticating political advertisers, whose activity they are disclosing voluntarily through public databases. They have also added human moderators and artificial intelligence programs to remove fake accounts, an initiative that has lessened social media pollution.

But they started policing themselves only after months of denial and public pressure. And their efforts only go so far: Every week seems to bring reports of improper activity slipping through the cracks….

The House recently passed a bill requiring platforms to keep public logs of political advertisers and tightening restrictions on activity originating outside the United States. A similar bill is pending in the Senate, but it has little chance of becoming law ahead of 2020, given the opposition of the Senate leader, Mitch McConnell.

The recent legislative action may be a start, but it’s steeped in assumptions of how media works left over from the days when TV and radio were the dominant forms. Social media posts that cost nothing don’t count as paid political ads, although they may have been created by well-funded organizations or profitable businesses whose goal is to sway voters.

The Internet Research Agency, for instance, pumped out free content from accounts that appeared to belong everyday Americans. Real citizens shared — and amplified — this stuff, sometimes by the hundreds of thousands.


“Controversial voter fraud bill dies in Texas House, but could be revived”

Houston Chronicle:

Sweeping voter reforms that Democrats and voting advocacy groups called nothing more than a tool for voter suppression appear to have died in the Texas Legislature.

The Texas House on Sunday night refused to schedule the controversial bill for a floor debate this week, a move that bars it from being voted on in the House.

Now the only way Senate Bill 9, championed by Texas Lt. Gov. Dan Patrick, can pass is if portions of the legislation are amended onto other bills by May 27, the last day of the session. However, the author of the bill, Sen. Bryan Hughes, R-Mineola, on Sunday night did not sound confident that he still has the time to go that route


University of Chicago Law Review’s Online Symposium on Posner and Weyl’s “Radical Markets” Now Available


RadicalxChange: An Academic Agenda
E. Glen Weyl
87 U Chi L Rev Online 1 (2019).

A History for the Future: Radical Markets and the Work of History
Ananya Chakravarti
87 U Chi L Rev Online 12 (2019).

A Decision Theoretic Approach to Understanding Survey Response: Likert vs. Quadratic Voting for Attitudinal Research
Charlotte Cavaillé, Daniel L. Chen, and Karine Van der Straeten
87 U Chi L Rev Online 22 (2019).

Radical Markets or Conventional Politics? An Ambitious Guide to Reforming American Immigration Policy​​​​​​​
Adam B. Cox​​​​​​​
87 U Chi L Rev Online 44 (2019).

Property Attachments​​​​​​​
Lee Anne Fennell​​​​​​​
87 U Chi L Rev Online 55 (2019).

QV or Not QV? That Is the Question: Some Skepticism about Radical Egalitarian Voting Markets​​​​​​​
Richard L. Hasen​​​​​​​
87 U Chi L Rev Online 67 (2019).

Audits, Markets, and Patents
Daniel Hemel​​​​​​​
87 U Chi L Rev Online 78 (2019).

The Technological Politics of Mechanism Design
Zoë Hitzig, Lily Hu, and Salomé Viljoen
87 U Chi L Rev Online 95 (2019).

Ownership and Punishment​​​​​​​
Matthew Prewitt​​​​​​​
87 U Chi L Rev Online 109 (2019).

Property in Radical Markets​​​​​​​
Katrina Miriam Wyman​​​​​​​
87 U Chi L Rev Online 125 (2019).


John Copeland Nagle, RIP

I am very sad to report that Notre Dame law professor John Nagle passed away after a brief illness. John wrote primarily in the area of environmental law, but he wrote occasionally in the field of election law and legislation. I got to know him a bit when he invited me to a symposium for the Journal of Legislation on a book of mine.

He was a kind and decent person, very generous with his praise and in sharing his wisdom. He was very smart and we all learned so much from him.

Here are remembrances from Derek Muller and Rick Garnett.

Condolences to his family and friends.


“Speaker Robin Vos gets temporary reprieve from appeals court in Wisconsin’s gerrymandering case”

Milwaukee Journal-Sentinel:

 A panel of federal judges late Friday temporarily blocked a lower court’s order that  Assembly Speaker Robin Vos sit for a deposition in Wisconsin’s gerrymandering case. 

In their brief order, the judges wrote that they were suspending the requirement that Vos testify and turn over documents until they further study the case. Vos had been scheduled to testify on May 29.

The lawsuit by Democratic voters challenges the election maps Vos and other Republican lawmakers drew in 2011 that have helped them keep large majorities in the years since then. 

Vos, of Rochester, fought the deposition request, arguing he didn’t have to sit for one because lawmakers are generally immune from civil lawsuits during the legislative session. 

The initial panel of federal judges hearing the case determined in a 2-1 ruling this month that Vos had to sit for a deposition because “this is an exceptional case that raises important federal questions about the constitutionality of Wisconsin’s plan for electing members of the Assembly.”

Vos asked the 7th Circuit Court of Appeals in Chicago to review that ruling and a three-judge panel there issued Friday’s order temporarily blocking the deposition. Those judges did not indicate when they would issue a final ruling. 

Update: There is a serious question whether the 7th circuit has jurisdiction to issue such an order in an interlocutory mandamus request (or whether only the Supreme Court can do so).


Must Read from Tierney Sneed: Ginni Thomas, Wife of Supreme Court Justice Clarence Thomas, Discussed Anti-“Voter Fraud” Campaign in Virginia Which Could Have Intimidated Minority Voters

Scoop from Tierney Sneed at Talking Points Memo (you’ve got to read the whole thing):

Ginni Thomas, the conservative activist and wife of Supreme Court Justice Clarence Thomas, wanted to “target” the “most questionable” precincts in Virginia with an anti-voter fraud campaign, according to an October 2016 email exchange she had with a prominent voter fraud alarmist and other conservative activists.

The emails were made public Friday in the litigation over a sensational report released by the group of the alarmist, J. Christian Adams, who also served on President Trump’s short-lived voter fraud commission.

Even Adams was skeptical of the idea — which was also being pushed by a conservative media consultant, Demos Chrissos — but not necessarily because he thought it would cross into the realm of illegal voter intimidation.

“It is possible to do without violating federal law if done correctly,” Adams wrote. “It is NOT possible to do without unleashing a leftist whirlwind that will be designed to boomerang on us and will JUICE leftwing turnout but [sic] threatening voter suppression (a made up term with no basis in law).”

Also of interest is the involvement of the same PR firm that tried to come up the cockamamie story of an alternative attacker of Dr. Ford during the Brett Kavanaugh hearings.


“Texas Republicans Poised to Make Voting ‘Harder, Scarier and More Confusing’”

Texas Observer:

A bill raising criminal penalties for certain election-related offenses and imposing new voting restrictions cleared a major hurdle Friday, setting the stage for yet another floor debate over voter suppression at the Texas Legislature.

On a party line vote, the Texas House Elections Committee passed Senate Bill 9, which contains measures tightening rules for assisting elderly or disabled voters and turns some misdemeanors, like improperly assisting or filling out ballot applications, into state jail felonies.  While Republican supporters frame SB 9 as an “election integrity” bill, a coalition of civil rights groups call it a “dangerous new assault on voting rights in Texas.”

The passage Friday comes days after more than a 200 people registered opposition against the bill in a public hearing. On Wednesday, lawmakers on the elections committee heard hours of testimony from several dozen opponents in a meeting that ended after midnight. While a brief delay, due to one Republican member’s illness, gave opponents short-lived hope of stalling the bill in committee, members convened an impromptu meeting for the vote during a recess in the House on Friday morning. The bill has already passed the more-conservative Senate and faces a Tuesday deadline for initial approval in the full House.


“Amendment 4: New report shows who’s out of prison and registering to vote”

Tampa Bay Times:

Amendment 4 led to 99 times as many formerly-incarcerated Floridians registering to vote as normal, and those new voters are more likely to be black and residents of lower-income neighborhoods than the rest of the electorate, according to a new analysis by the Brennan Center for Justice.
The amendment, which took effect Jan. 8, allows Floridians to register to vote once they finish serving a felony sentence.

Previously, becoming a felon meant forfeiting the right to vote, unless someone overcame long odds by successfully appealing to the state’s clemency board, made up of the Florida governor and three Cabinet members.
Now, a bill passed earlier this month by state lawmakers mandates that finishing a sentence means first paying off all court fines, fees and restitution (or seeking a waiver from a judge), and it awaits Gov. Ron DeSantis’s signature.

“There can be no mistaking the racial and class implications of this regressive new legislation,” researcher Kevin Morris wrote in the Brennan Center study, regarding Senate Bill 7066.


“Facebook Bans Israeli Firm Over Fake Political Activity”


Facebook said it removed hundreds of fake accounts, pages and groups linked to a commercial entity based in Israel, a rare move against a private operation as the social network tries to stamp out misinformation around global elections.

The company Thursday said it took down a network of 265 accounts, pages and groups, including 65 Facebook and four Instagram accounts, that posted content primarily pertaining to elections and other political activity in Africa, as well as Latin America and Southeast Asia.
About 2.8 million accounts followed one or more of the inauthen

tic pages, Facebook said in a blog post. Nine events—one dating back to October 2017 and one scheduled for May—were organized by the pages, though Facebook said it didn’t know if any events took place.


“9th Circuit rejects challenge to foreign-donation ban”


A federal appeals court has rejected a legal challenge to Congress’ ban on most foreign nationals donating to state and local election campaigns.
The 9th Circuit Court of Appeals upheld the ban Thursday, saying that a “summary” Supreme Court ruling in 2012 upholding the foreign-donation ban left lower-court judges obliged to turn down all First Amendment challenges to the statute.

However, that high-court decision — issued without briefing or argument — dealt with a lawsuit focused on federal elections. Critics of the ban have said that allowing it to extend into state and local political contests intrudes on the right of states and municipalities to control their own electoral processes.

Writing for a unanimous three-judge panel, Judge Milan Smith Jr. said Congress’ constitutional authority extends to setting rules for financial participation in state and local elections.

“As donations and contributions have grown more important to the campaign process, so too has concern over foreign influence in American elections,” wrote Smith, an appointee of President George W. Bush.

“A prohibition on campaign donations and contributions by foreign nationals is necessary and proper to the exercise of the immigration and foreign relations powers. … Accordingly, Congress was within its power when it acted to protect the country’s political processes after recognizing the susceptibility of the elections process to foreign interference,” added Milan in a 50-page opinion joined by Judges Paul Watford and Andrew Hurwitz, both appointees of President Barack Obama.


“Russian government hackers targeted small county in Florida panhandle in 2016”


The voter registration database of a small county in the Florida panhandle was breached by Russian government hackers in 2016, according to two U.S. officials.

The Russian military spy agency, the GRU, was responsible for the penetration of Washington County’s database, according to the two officials, who spoke on the condition of anonymity to discuss a sensitive matter. The county has a population of about 25,000.

Carol F. Rudd, county elections supervisor, declined to comment on the breach but said it’s important for federal, state and local officials to be able to communicate confidentially. “If each agency gets suspicious of the other’s ability to follow the rules of confidentiality, then those tenuous lines of communication quickly break down,” she said in an email. “That would set our security capabilities back years and severely compromise our ability to protect our elections. THAT would be a big win for the Russians going into 2020.”

Then-Florida Secretary of State Ken Detzner said he was “prohibited by law from commenting.” But “the citizens deserve and have a right to know important things with regard to their election security. Over time, it’ll come out.”


Kentucky State Board of Elections Violated State Open Records Rules in Denying Documents to ProPublica

Jessica Huseman on this decision: