North Carolina Republican Leader Contemplates Voter ID Constitutional Amendment

It never ends.

On the last voter id law passed by the NC general assembly, the United States Court of Appeals for the Fourth Circuit concluded: “Although the new provisions target African Americans with almost surgical precision, they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist.”

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“Democrats Move Swiftly Against Conyers Amid Latest Harassment Charges”

NYT:

Representative Nancy Pelosi, the Democratic leader, moved swiftly on Tuesday against the House’s longest-serving lawmaker, calling for the House Ethics Committee to investigate sexual harassment charges against Representative John Conyers Jr., the top Democrat on the House Judiciary Committee.

Mr. Conyers, 88, who has represented parts of the Detroit area in the House since 1965, confirmed the settlement of a wrongful termination complaint in 2015 from a staff member who had accused him of sexual harassment. But he denied that the staff member was fired for refusing to have sex with him. The settlement was first reported by BuzzFeed News on Monday….

The calls for an investigation came as Democrats privately raised the prospect that Mr. Conyers would at least be asked to step aside from the coveted top Judiciary post. Mr. Conyers, a founding member of the Congressional Black Caucus, also holds the venerated title of Dean of the House. But he has been a target of Democrats who are eager to bring fresh blood into the Judiciary Committee leadership for some time, three congressional officials said.

He has already handed over much of the day-to-day committee work to staff aides and other Democratic members in recent years, and has often appeared disoriented. In at least two separate occasions — once at a United Automobile Workers event in Michigan and once at a meeting of top Democrats on Capitol Hill — Mr. Conyers showed up wearing pajamas, according to two people familiar with the incidents….

However, on Tuesday morning at his home in Detroit, Mr. Conyers told The Associated Press that he knew nothing about any claims of inappropriate touching and learned of the accusations from television just hours earlier. “I have been looking at these things in amazement,” he said to a reporter.

Hours later, a spokeswoman for Mr. Conyers hinted that the reporter’s questions confused him. “Congressman Conyers was under the impression the reporter was speaking of recent allegations of which he was unaware of and denied,” the spokeswoman said.

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“Pennsylvania Congressman Is Under F.B.I. Scrutiny, Court Records Show”

NYT:

The F.B.I. is investigating whether Representative Robert A. Brady of Pennsylvania, the top Democrat on the House Administration Committee, illegally paid a political opponent $90,000 to drop out of a 2012 primary race, court documents show.

Two of Mr. Brady’s political consultants have already been charged in a campaign finance investigation of the congressman’s 2012 re-election. But a recently unsealed application for a search warrant suggests Mr. Brady may be a target of the inquiry.

The allegations involve payments the Brady campaign made to the campaign of Jimmie Moore, a former Municipal Court judge in Philadelphia who ended his run for Congress in February 2012.

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“Appeals court skeptical of privacy-focused suit against Trump voter fraud panel”

Josh Gerstein:

An appeals court gave a skeptical reception Tuesday to a lawsuit claiming that President Donald Trump’s voter fraud commission violated federal law by failing to study the privacy impact of a demand for voter rolls and other personal data on millions of Americans.

During oral arguments, a three-judge panel from the D.C. Circuit Court of Appeals didn’t say much about the possibility that the President’s Advisory Committee on Election Integrity violated a requirement Congress created in 2002 that federal agencies conduct a “privacy impact assessment” before embarking on collection of data on individuals.

Instead, the judges repeatedly questioned whether the organization pressing the suit — the Electronic Privacy Information Center — had legal standing to pursue the case.

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“Leading Trump Census pick causes alarm”

Politico:

The Trump administration is leaning toward naming Thomas Brunell, a Texas professor with no government experience, to the top operational job at the U.S. Census Bureau, according to two people who have been briefed on the Bureau’s plans.

Brunell, a political science professor, has testified more than half a dozen times on behalf of Republican efforts to redraw congressional districts, and is the author of a 2008 book titled “Redistricting and Representation: Why Competitive Elections Are Bad for America.”

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von Spakovsky and Adams Say Only Plausible Reason People Question Pence-Kobach Fraud Commission is Because They Want Voter Fraud and Mistakes to Happen

Washington Examiner:

A wide range of interest groups – from academics, to faux-media outlets, to partisans, to foundations and the activist groups they fund – appear intent on trying to sabotage the work of the Presidential Advisory Commission on Election Integrity. The only plausible reason for this is that they don’t want the public to learn more about vulnerabilities in our elections that allow election fraud and other administrative errors and mistakes to occur.

Another plausible reason: the record of those working on the commission.

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“Judge: Trump voter fraud commission on ice till next year”

Josh Gerstein:

A commission that President Donald Trump tasked with investigating his own unsubstantiated claims of voter fraud won’t meet again this year, according to court records, fueling more questions about the panel’s future and its viability.

In an order Monday, U.S. District Court Judge Colleen Kollar-Kotelly said a Justice Department attorney told the court Friday that the President’s Advisory Commission on Election Integrity “will not meet in December.”…

The official would neither confirm nor deny reports that the panel might close up shop without further meeting….

The administration official who spoke to POLITICO on Monday said that despite the lack of a planned meeting, panel staff were hard at work.

“Commission staff are still working through materials obtained in the previous meeting,” the official said. “We made members aware of this. Some members have gone ahead and said there should be a meeting scheduled, but there’s still a lot of information we’re going through.”

It’s that last part that’s worrying.

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“Peer Review for Candidates”

A few weeks back, the Washington Post ran 38 short ideas from various commentators on fixing American democracy.  I wanted to flag Elaine Kamrack’s contribution, with the title above, which focused on changing the presidential nomination process.  It resonates with the views I’ve been expressing in more academic writing (eg, here).

Among her many accomplishments, Elaine has worked on four presidential campaigns and participated in ten nominating conventions.  Here’s her contribution:

In 2016, the Republicans nominated the least experienced and most temperamentally unsuited person to ever win the presidency. The leadership of the Republican Party sat powerless as an unknown and untested leader won primary after primary. In the end, the party did the only thing it could do in the modern nomination system: unite behind Donald Trump rather than risk alienating voters.

And now, nine months into the reign of President Chaos, all the fears about him are real. It wasn’t an act. The president is as inexperienced and as mercurial as he appeared in the campaign, and many are wondering how we got here.

For most of American history, the candidates who ran for president were chosen in a process that was almost entirely closed to the public. The selection was left to political parties or to what we now disparagingly call “superdelegates.” Ordinary citizens did not participate in the process of nominating presidential candidates, nor did they expect to. The process subjected candidates to an element of peer review. People with political and governmental experience evaluated nominees before the voters did.

It took only 40 years for the American nomination system to flip entirely. By 2008, the views of primary voters were considered the only legitimate views, while the views of party leaders were considered illegitimate at best and downright corrupt at worst. And thus in 2016 the system served up a man who could not have won the nomination had it been controlled by other political leaders.

So here’s an idea: Inject an element of peer review back into the nomination process. Require each party’s leaders, its members of Congress and its governors to pass formal judgment on presidential wannabes, and make them do it before the primaries. The voters might still reject the preferences of the party leaders — but at least they would have been warned.

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Columbus, OH: “NAACP LDF Critiques City’s At-Large Electoral Process for Having Racially Discriminatory Results”

Columbus Underground:

At the urging of local ballot issue committee Everyday People for Positive Change (EDP), the NAACP Legal Defense Fund (LDF) issued a letter to the City of Columbus asserting that its at-large method of electing city council members has weakened the voting strength of Columbus’ black community and violates Section 2 of the Voting Rights Act of 1965. Section 2 prohibits voting standards, practices or procedures, including at-large electoral methods, that either have racially discriminatory intent or results. The letter calls for the immediate assessment and adjustment to Columbus’ electoral process, suggesting the use of single-member districts as one potential solution.

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“After the INDY’s Report About Judicial Nominee Thomas Farr Misleading a Senate Committee, Senator Dianne Feinstein Wants Answers”

INDY Week:

U.S. Senator Dianne Feinstein, a California Democrat and ranking member of the Senate Judiciary Committee, said Friday she’s “disturbed greatly” by the INDY’s report that Raleigh lawyer Thomas Farr wasn’t truthful with her in committee hearings on the federal judgeship for which he was nominated by President Trump….

Farr, sixty-three, was picked by Trump to become a federal district judge in the Eastern District of North Carolina this year. In Farr’s response to questions from Feinstein, he said he had didn’t learn in advance of the more than one hundred thousand postcards the late Senator Jesse Helms’s U.S. Senate campaign sent to primarily to African-American voters in 1990, insinuating that they would be arrested if they voted. In his role as campaign counsel, Farr said, his first knowledge came in a complaint about the cards from the federal Department of Justice.

The Judiciary Committee voted along partisan lines in October to send Farr’s nomination to the full Senate, but no time has been set for a vote.

The Helms campaign was working feverishly in October 1990 to defeat former Charlotte mayor Harvey Gantt, an African American. (This was the campaign that produced the notoriously racist “Hands” ad.)  Farr has long said he had no role in sending the postcards. But a former Department of Justice prosecutor repeated to the INDY this week what he had told this reporter in 2009—that Farr knew about the postcards well in advance of the mailing, which implies that he misled the Senate committee about his involvement.

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Much Russian Activity Meddling in 2016 Elections Likely Didn’t Violate Federal Law, Wouldn’t Be Covered by Proposed “Honest Ads Act,” and May Be Beyond (Conservative Justices’ Views of) Constitution to Limit

I’ve already hinted at some of these things in this Politico piece, but I’ve now fleshed it out in the latest draft of my forthcoming First Amendment Law Review article, Cheap Speech and What It Has Done (to American Democracy). Here’s an excerpt, without footnotes, from the revised Part III.A.:

Campaign finance law provides a good example of how First Amendment doctrine and rhetoric may interfere with sensible reforms. Consider the current controversy over microtargeted and bot-amplified Facebook ads and other online activity which Russia and others engaged in aimed at promoting fake news and stirring social unrest in the 2016 elections. After investigation, Facebook
announced finding at least $100,000 in spending from sources connected to the Russian government on roughly 3,000 ads intended to influence the election. The ads reached at least 10 million people (44 percent before the 2016 election), and some focused on social controversies over immigration rights, gun rights, and racial justice.

It is almost certain that at least some of these ads do not violate current federal campaign finance law if Russia paid for them independent of anycoordination with political campaigns.74 Further, laws that would bar Russia from placing these ads could well be found at least partially unconstitutional under the First Amendment as the Supreme Court currently construes it. Federal law bars foreign nationals, including foreign governments, from making expenditures, independent expenditures, and electioneering communications in connection with a “Federal, State or local election.” However, it is at best uncertain whether independent online ads that do not expressly advocate the election or defeat of candidates are covered by the foreign expenditure ban.

For example, a Russian ad promoting a Black Lives Matter rally but not mentioning or showing a candidate for office likely would not be considered an election ad under current law, which does not cover pure issue advocacy even if intended to influence election outcomes.

These advertisements also would not be covered under proposed federal legislation, the “Honest Ads Act,” which would extend rules barring foreign spending on television or radio “electioneering communications” to communications via digital outlets like Facebook. Electioneering communications must feature the name or likeness of a candidate for office to be covered.

Even if Congress passed a statute purporting to make illegal all of the activity Russians engaged in during the 2016 elections, such a statute likely would run into First Amendment resistance. After the Supreme Court decided Citizens United v. Federal Election Commission, a 2010 case holding that corporations have a First Amendment right to spend unlimited sums independently to support or oppose candidates for public office, the Court summarily affirmed a lower court decision in Bluman v. Federal Election Commission.

Bluman upheld federal law barring foreign nationals—in the case of Benjamin Bluman, a foreign national working in New York on a temporary work visa—from spending even fifty cents to print and distribute flyers expressly advocating the reelection of President Obama. Bluman seems to indicate that, despite tensions with the holding in Citizens United that the identity of the speaker does not matter for First Amendment purposes, the government has a compelling interest in banning foreign spending inour elections:

“It is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government. It follows, therefore, that the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process.”

But the Bluman court, in an opinion by conservative-libertarian D.C. Circuit judge Brett Kavanaugh, narrowly construed the foreign spending ban to cover only express advocacy and not issue advocacy. “This statute, as we interpret it, does not bar foreign nationals from issue advocacy—that is, speech that does not expressly advocate the election or defeat of a specific candidate.” Indeed, three FEC Republican commissioners relied upon this dicta from Bluman in voting to hold that the foreign spending ban does not apply to ballot measure elections.

While this interpretation is not free from doubt—the statute is written broadly to cover all expenditures and not just independent expenditures—it seems the kind of interpretation likely to be favored by the current Supreme Court. Indeed, it is not clear that the courts would accept a more clearly written foreign spending ban going beyond express advocacy and electioneering communications to cover foreign-funded ads meant to stir social unrest without using candidates’ names or likenesses. These ads should be covered, not because they necessarily contain false speech, but because they constitute a foreign government’s interference with American self-government.

As some evidence of the conservative-libertarian position on banning foreign spending, consider the dispute over whether the President’s son, Donald Trump Jr., constitutionally could be prosecuted for the alleged soliciting of Russian government sources for “dirt” on Hillary Clinton, such as emails stolen from the Democratic National Committee. Professor Volokh argued against a broad reading of the statute aimed at preventing foreign interference in U.S. elections, and he advanced libertarian arguments in favor of allowing foreign nationals (including perhaps foreign governments) to share “information” such as “opposition research” with American campaigns, information which might help the public decide who to vote for in elections.

Using the doctrine of substantial overbreadth, libertarians like Volokh have made arguments that would chip away at limitations on foreign intervention in U.S. elections in the name of protecting free speech. These new arguments in favor of foreign campaign spending follow a decade-long conservative-libertarian all-out push to prevent the Federal Election Commission from drafting rules which would regulate more campaign activity conducted via the Internet beyond what’s been called “paid ads and spam,” with paid ads including only express advocacy. The fight over Internet regulation has been so fierce at the FEC that former FEC chair Ann Ravel faced death threats Others have raised slippery-slope type arguments claiming without evidence that Commissioner Ellen Weintraub’s call to investigate Russian social media spending in the 2016 election would allow the Commission to conduct an “inquisition” of conservative media outlets such as InfoWars, Breitbart, and the Drudge Report.

Even the constitutionality of the disclosure of the foreign sources of some ads could be called into constitutional question. Thus far, the Supreme Court has held that mandatory disclosure of most campaign finance activity in elections does not violate the First Amendment. But conservative-libertarian First Amendment advocates continue to push arguments that such disclosure violates the First Amendment, especially if targeting issue ads like some of the Russian-funded ads not naming candidates. It is an argument that may ultimately resonate on an increasingly conservative Supreme Court. Right now, there are three Justices (Alito, Gorsuch and Thomas) likely sympathetic to these arguments, and more Justices with these views may join the Court in the next few years depending upon political developments.

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“Bipartisan Harvard panel recommends hacking safeguards for elections”

Reuters:

A bipartisan Harvard University project aimed at protecting elections from hacking and propaganda will release its first set of recommendations today on how U.S. elections can be defended from hacking attacks.

The 27-page guidebook shown to Reuters ahead of publication calls for campaign leaders to emphasize security from the start and insist on practices such as two-factor authentication for access to email and documents and fully encrypted messaging via services including Signal and Wickr.

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“The Trump-Russia-WikiLeaks Alliance and Campaign Finance Laws”

Bob Bauer for Just Security:

The WikiLeaks-Trump Jr. correspondence has passed through this round of commentary. I thought that these Twitter exchanges unquestionably deepened the campaign’s legal exposure to liability for aiding illicit foreign national activity in U.S. elections. It seemed to me, as I wrote, that “the facts and circumstances here are without precedent” and that “it is hard to imagine that any truly neutral analyst informed about the law would conclude otherwise.” And yet there are highly knowledgeable scholars and observers who do not apparently see things this way.

Skeptics included experts such as Paul Ryan and Rick Hasen. Ryan saw nothing especially powerful in the contacts: no evidence, as far as he was concerned of “anything of value” that the campaign solicited or received from the Russians via Wikileaks.  He believes that compared, say, to the revelation of the Trump Tower meeting,  the Trump Jr.-WikiLeaks exchanges to be “small potatoes.”Hasen has doubted that Wikileaks’ activity was even part of the legal story. He sees it as potentially a foreign media organization operating like any other news entity in receiving and distributing information from various sources, including the Russian government.

This is not to say that either Hasen or Ryan doubt that there is evidence of a campaign finance violation in the public reporting to date on the Trump campaign-Russia connection. Both have identified serious issues raised by the June 2016 Trump Tower meeting between senior campaign officials and Kremlin emissaries. , But they hesitate to assign much independent weight to the WikiLeaks correspondence. And on that we disagree,

So what are the reasons for the disagreement?   Of course, lawyers can dispute the law and its application to a particular set of facts, as we do–all the time. But the difference in outlook in this instance is worth exploring.  This difference turns on how any new evidence is evaluated–either more or less in isolation, or in relation to others within the emerging picture of the Russian-Trump campaign alliance.

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“Maine secretary of state steps up legal fight with Trump voter fraud panel”

BDN:

Maine Secretary of State Matt Dunlap is increasing the pressure on President Donald Trump’s election fraud commission to release documents he says have been withheld from him.

Dunlap, who is a member of the president’s commission, announced Thursday that he has asked a federal court for an injunction in his request that is designed to force the commission to share records and meeting materials.

If granted, the injunction would shorten the timeframe for the commission to respond to his complaint from two months to one week.

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“Why Are Corruption Cases Crumbling? Some Blame the Supreme Court”

NYT:

The trend began in 1999 when a Supreme Court case called United States v. Sun Diamond Growers of California chipped away at the government’s ability to prosecute officials for taking what are known as gratuities — or minor gifts given to them by businesses or allies. The opinion found that gratuities were illegal only if the government could connect the gifts to specific favors by officials, establishing a visible quid pro quo.

In 2010, the court attacked another anti-corruption tactic, narrowing the definition of what is known as honest services fraud. The ruling in this case came as the justices reversed parts of the criminal conviction of Jeffrey K. Skilling, the former Enron chief executive who had been found guilty of charges related to his company’s collapse. Although Mr. Skilling was a private citizen, the opinion had a political effect: the newly limited fraud law had frequently been used to go after politicians who served themselves at their constituents’ expense.

But the court’s most substantial opinion on corruption came last year when it redefined the very nature of political graft in throwing out the bribery conviction of Bob McDonnell, the former Republican governor of Virginia. A jury determined that Mr. McDonnell had helped a wealthy businessman by setting him up with influential people in an effort to promote a dietary supplement he was selling. But even though the businessman had given the governor several gifts and loans, the court concluded it was not illegal. It ruled that Mr. McDonnell’s part of the arrangement — making introductions and setting up meetings — was not in fact a betrayal of his office, or what the law describes as an “official act.”

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“The House Tax Bill Could Be the End of Charities as We Know Them”

Roger Colinvaux:

If the tax bill passed by the House Ways and Means Committee becomes law, partisan politics would overtake the nonprofit world, casting institutions designed to promote the public good into the depraved den of identity politics and selfish motives. Charities would use tax-subsidized contributions to favor or oppose political candidates at the behest of wealthy, anonymous donors with devastating results for charities and democracy.

This is a seismic moment for the conduct of politics in America. The House bill must be changed.

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“‘Race-based redistricting’ imposed on NC ‘against its will,’ lawmakers say”

News and Observer:

Lawmakers and the challengers of maps proposed for electing North Carolina’s General Assembly members waited until the 11th hour to respond to districts suggested by an unaffiliated mapmaker.

Lawmakers were critical of the process, saying the federal judges who tapped a Stanford University law professor to draw maps for them had done so prematurely and allowed him to consider race as he looked at election districts in Cumberland, Guilford, Hoke, Mecklenburg, Wake, Bladen, Sampson and Wayne counties.

Justin Levitt: “Sigh. NC legislators continue to misunderstand the law, almost as if the misunderstanding is willful. #1: Special Master didn’t appear to target any particular racial outcome. #2: Even if he had considered race, it’d raise no const. questions unless race ‘predominated.'”

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“Election officials move closer to placing new rules on Facebook and Google”

Washington Post:

The Federal Election Commission moved a step closer to placing tighter regulations on Internet ads published on major Web platforms, marking a significant shift for an agency beset by partisan dysfunction and another sign that regulators are seeking to thwart foreign meddling in U.S. elections.

All five members of the commission voted Thursday to start a rulemaking process to require disclaimers for small, character-limited political ads that run online on places such as Facebook, Google and Twitter….

While the entire commission agreed that the process leading to new rules should begin, there was disagreement over when tech companies and experts should be invited to offer detailed input. Vice chair Caroline Hunter, a Republican, flashed frustration when asked by Democratic Commissioner Ellen Weintraub to explain why the commission shouldn’t hold a hearing on the matter sooner rather than later. “I don’t know how I can be any more clear,” Hunter said. She insisted that the commission should take time to digest the more than 100,000 comments it received from the public on Internet ad regulations, as well as material gleaned from three recent congressional hearings, where officials from Facebook, Google and Twitter testified.

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“Corruption Case Against Senator Menendez Ends in Mistrial”

NYT:

The federal corruption trial of Senator Robert Menendez of New Jersey ended in a mistrial on Thursday after jurors said they were unable to reach a verdict, leaving Mr. Menendez, a Democrat, free to return to Congress but injecting uncertainty as he faces re-election next year and his party faces a difficult battle to retake the Senate.

After interviewing jurors individually in his chambers, Judge William H. Walls emerged to tell the court that, after nine weeks of testimony, the jury was deadlocked and that, as a result, “there is no alternative but to declare a mistrial.”

One juror told reporters that 10 of the 12 jurors supported finding Mr. Menendez, a Democrat, not guilty, saying that prosecutors had not made the case that the favors and gifts exchanged between the senator and a wealthy eye doctor went beyond what good friends do for each other….

The indictment against Mr. Menendez and Dr. Melgen was handed down in 2015, a year before the Supreme Court decision significantly limited the official acts a politician could be convicted of in a bribery case.

The McDonnell decision loomed throughout the trial with Judge Walls at one point referring to it as “you know what,” and hinting that he may have granted a motion to dismiss the case based on the high court’s definition of bribery.

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“Donald Trump Jr.’s Messages With WikiLeaks Point to Campaign-Finance Violations”

Bob Bauer in The Atlantic:

The prohibition has a broad sweep. It disallows contributions, donations, or “anything of value” provided by a foreign national to sway an election. It also bars a campaign from offering “substantial assistance” to a foreign national engaged in spending on American races. Trump Jr.’s messages not only powerfully support the case that the Trump campaign violated these rules, but they also compound the campaign’s vulnerability to “aiding and abetting” liability under the general criminal laws for assisting a foreign national in violating this spending ban.

The exchanges show how the campaign, in this instance through Trump Jr.’s activities, provided specific support and encouragement to WikiLeaks, which by then had effectively partnered with Russia to attack Hillary Clinton’s candidacy and promote Donald Trump’s. Russia devoted resources to hacking Democratic emails; WikiLeaks funded their distribution. In public and private communications, the campaign endorsed and facilitated their actions.

At this point, Bob sees something that Paul Ryan of Common Cause and I don’t yet see in relation to Wikileaks.

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“Seattle’s Democracy Vouchers Reduce the Power of Big Money and Expand Political Participation”

Every Voice:

Seattle’s Democracy Voucher Program is achieving its intended goals by generating historic numbers of new and small donors, diversifying the makeup of campaign supporters to better reflect the people of Seattle, and limiting the reliance on big money in local elections, according to an initial analysis of the new system in this year’s city elections by the Seattle-based Win/Win Network and national money-in-politics group Every Voice Center.

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In Wake of Russian Interference on Social Media in 2016, Republican FEC Commissioners Agree to Open Rulemaking on Fixing Disclosure Rules

My oh my.

A positive (and surprising) development.

But let’s see if/what they come up with and if they can get agreement. We’ve seen groups like the Institute for Free Speech oppose the Honest Ads Act out of stated concern that the law would chill the free speech activities of non-foreigners. Those same concerns may lead to stalemate on crafting an actual rule.

And note that by the time this could come up for a vote, Petersen could be on the federal district court, Goodman could well have left the commission, and unless Trainor (or someone else) and another are confirmed, the FEC will lack a quorum to do anything.

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The Latest Ploy GOP Considers to Avoid a Roy Moore Senate Problem Likely Violates the 17th Amendment

I spent a good part of my Saturday afternoon tweeting and blogging in conversations with Hugh Hewitt about ways Republicans could deal with the Roy Moore mess.

At first Hewitt suggested cancelling the election altogether, and letting Strange just complete the term. I protested that cancelling an election already underway (military and other absentee  voter have already voted) is profoundly undemocratic and dangerous. It also appears to violate the 17th Amendment, which requires that an appointment of a temporary Senator be temporary, and that the state schedule a replacement vote.

Eventually Hewitt relented on this point (not because he thought it was undemocratic—indeed he seemed to believe Republicans are somehow entitled to Alabama’s two Senate seats without an election), but because he thought it would violate the 17th Amendment.

So he hit on another idea, and according to Politico it is an idea Republican leaders nationally are now weighing:  get Luther Strange, the temporary Senator appointed to replace Jeff Sessions, to resign, and then with the new vacancy, declare this election void and start over.

I’ll talk about the political implications in a bit, but first the constitutional issue.  Here’s what the 17th Amendment says, in pertinent part:

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

When Jeff Sessions resigned, that created a vacancy. Alabama law allowed the governor to fill that vacancy and to set the date for a special election. The governor (actually the predecessor) appointed Luther Strange and purported to set the date of the replacement election. (There’s some controversy about whether he had the authority to do this). The new governor reset (or properly set) the replacement election. We’ve had the primary, and now we are in the general election.

The governor was mandated to issue a writ of election. Because the writ of election has been already issued to fill a vacancy, the election goes forward under the language of the 17th Amendment. Temporary vacancies filled by the governor don’t change that. That’s a separate part of the 17th amendment and separate from the duty to issue the writ of election when there is the vacancy of an elected Senator.

Imagine if a temporary Senator appointed until an election died in office, after an election had been called. Under the 17th Amendment, we would not cancel the election already being held under the 17th Amendment requirement for a new election. We would just keep going. It’s the same thing for a voluntary resignation by the temporary Senator.

I’ve seen no authority to the contrary that a temporary Senator’s leaving office (for whatever reason) moots an election already in progress.

Now onto the political issues:

  1. If this gambit actually worked, and survived court challenge, Moore could run again and still win.
  2. Why would Luther Strange put himself through this again?
  3. Jeff Sessions wants no part of this.

Given the legal and political difficulties, the national Republicans have only a few choices. They can run a write-in election, maybe with Strange, against the wishes of the state party.  Moore could still win that, but more likely Republicans split the vote and the Democrat Jones wins.

Or Moore could win the election, and Republicans could try to expel him. There’s a Senate norm, apparently, of not expelling for conduct before taking office that voters knew about. Do Senators violate this norm?  It takes 2/3 to expel.  What if Democrats, either following this norm or sticking it to Republicans, don’t vote to expel?  Then Moore is a constant national story, and a reminder of What the Republicans are trying to avoid.

Or Moore could go on to lose, giving Jones the seat and moving the Senate majority to one seat.

No wonder Republicans are contemplating a constitutional Hail Mary.

[This post has been updated.]

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““Why Should I Go Vote Without Understanding What I Am Going to Vote For?” The Impact of First Generation Voting Barriers on Alaska Natives”

James Tucker, Natalie Landreth, and Erin Lynch have written this article for the Michigan Journal of Race and Law. Here is the abstract:

This article explores the many forms of discrimination that have persisted in Alaska, the resulting first generation voting barriers faced by Alaska Native voters, and the two contested lawsuits it took to attain a measure of equality for those voters in four regions of Alaska: Nick v. Bethel and Toyukak v. Treadwell. In the end, the court’s decision in Toyukak came down to a comparison of just two pieces of evidence: (1) the Official Election Pamphlet that English-speaking voters received that was often more than 100 pages long; and (2) the single sheet of paper that Alaska Native language speakers received, containing only the date, time, and location of the election, along with a notice that they could request language assistance. Those two pieces of evidence, when set side by side, showed the fundamental unequal access to the ballot. The lessons learned from Nick and Toyukak detailed below are similarly simple: (1) first generation voting barriers still exist in the United States; and (2) Section 203 of the VRA does not permit American Indian and Alaska Native language speaking voters to receive less information than their English-speaking counterparts. The voters in these cases had been entitled to equality for 40 years, but they had to fight for nearly a decade in two federal court cases to get it.

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Control of Virginia House of Delegates May Depend Upon Administrative Error in Having Voters Vote in Wrong Race

Oh boy if this pans out:

In Fredericksburg, Elias said those results appear to show about 668 votes at precincts that Virginia’s redistricting statutes say are in outgoing House Speaker Bill Howell’s 28th District that instead were cast in Republican Del. Mark Cole’s re-election victory in the 88th District.

Elias, as the lawyer for the House Democratic Caucus, asked the state board of elections in a letter to “take all steps necessary to resolve these discrepancies.”

Asked what those steps would be, Elias said Democrats are first waiting to confirm that some voters were given the wrong ballots at Fredericksburg precincts 201 and 402.

However, the letter to the board asks that the results in House District 28 not be certified as scheduled Monday among other changes. Following a strictly party-line basis, if the number of votes for Democrat Steve Aycock had instead been cast for Joshua Cole and the Republican votes for 88th District incumbent Mark Cole had instead been cast for Bob Thomas, Joshua Cole would be leading in the 28th District.

While Elias said Democrats learned of the potentially incorrect precinct splits only since Election Day, state board of elections records show the same precincts were also split between the 28th and 88th districts in each election since new maps were drawn in 2011.

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“After Months Of Silence, A Blip Of Activity From Trump’s Voter Fraud Panel”

Sam Levine for HuffPost:

After over two months of silence, there was a blip of activity from President Donald Trump’s voter fraud commission this week when a commissioner sent an email requesting information on voter fraud prosecutions by the Department of Justice and suggested the agency was not pursuing those types of cases vigorously enough.

J. Christian Adams, a commissioner and former DOJ official, sent an email to Andrew Kossack, a federal official charged with the panel’s administration, and copied all of the other commissioners Monday. He asked that Kossack request an annual public report from DOJ on election crimes as well as voter fraud cases the department has pursued over the last decade.

“As far as I can tell, there has not been a single prosecution whatsoever for any double voting or any non-citizen voting. I know with certainty that multiple instances of double voting and alien voting have been brought to the attention of the appropriate federal officials, and no action has been taken. Of course when you don’t prosecute crimes, you tend to have more crimes,” Adams wrote.

The email is significant because it is the only recent sign of action from the commission, according to Maine Secretary of State Matthew Dunlap (D), who forwarded the message to HuffPost; it also reveals one avenue of inquiry the panel may pursue. Even the panel’s own commissioners have said they have no idea what it is working on or what it will eventually recommend to Trump. Several studies and investigations have shown voter fraud is not a widespread issue.

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“Disabled voters’ ballots tossed because they didn’t write their names”

Wichita Eagle:

The ballots of 23 Sedgwick County voters were tossed out Monday under a state law that requires disabled voters to sign their own mail-in ballot envelopes.

County commissioners, acting as the canvassing board for last week’s election, reluctantly signed off on the decision to toss out the ballots. They said they think the law is wrong, but they had no choice.

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“Not Delivered Or Just Not Picked Up? Late Stafford, VA Ballots Roil Tight Race”

Doug Chapin:

A tight House of Delegates race in Stafford County (Quantico), Virginia is generating frustration and controversy after the county board of elections voted to exclude 55 absentee ballots that arrived in the election office on Wednesday morning after the 7pm Election Day deadline. The problem is, it isn’t clear when the ballots arrived at the post office – meaning that the delay could have been a failure of the county to pick up timely ballots. …

What’s unfortunate is that all of this controversy seems to have been avoidable had the election office implemented the bar code tracking program – which would have indicated that ballots were arriving on Election Night – and made a final sweep of post offices late in the day to pick up last-minute absentee ballots. Since they didn’t, now a close election (which happens) has become a controversial one (which doesn’t have to happen). Given that the race in question is one of three statewide that could affect partisan control of the House chamber, you can bet it will get full attention. There will almost certainly be more developments in this case, which may or may not change the outcome – but you know that it will create demands for explanations (and maybe change) at the Stafford County elections office. Hang on – and stay tuned …

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“Koch brothers key to funding assault on campaign finance regulation”

 CPI:

The Center for Public Integrity investigated an array of organizations that have participated in legal challenges dating back 40 years that have resulted in a system allowing unlimited sums to be pumped into modern elections. It’s a system that both Republicans and Democrats now fully rely upon ahead of 2018 midterm elections that could reaffirm — or torpedo — President Donald Trump’s congressional majority.

Throughout that history, Koch-backed groups have stood out as reliable, stalwart opponents of regulation of money in politics. While far from the only players in the legal battle, the Kochs are certainly among the most recognizable — and significant.

The Center for Public Integrity identified the sources of $293 million received by groups that lodged formal arguments in key campaign finance deregulation cases. It also identified $64 million in funding for groups that defended campaign finance regulations, including significant cash from liberal billionaire and Koch foil George Soros.

Looks like only some of this story is available so far.

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Must read: “Russian Twitter Trolls Stoked Voter Fraud Fear Before Election”

NBC News:

Russian trolls used Twitter to challenge the validity of the U.S. presidential election months before it took place, according to new NBC News analysis.

In apparent expectation of a Trump loss, the trolls began sowing seeds of doubt to make voters question a win by Hillary Clinton. But when Donald Trump’s victory began rolling in, they changed their tune and began tweeting about the Trump success.

Kremlin propaganda tweets using the “VoterFraud” hashtag first appeared in August 2016 and slowly ramped up to an Election Day blitz, according to the NBC News analysis of some 36,000 archived tweets from a single anonymous source with knowledge of social media data….

The hashtag was promoted by other high-impact impostor accounts, including the popular @Pamela_Moore13 — an account with over 70,000 followers, whose profile showed a nearly naked masked woman holding an American flag. “Moore” identified herself as a “Pro-God” conservative from Texas who was “Anti-Racism.”

The “Moore” account was retweeted at other points in the campaign by political figures in the Trump orbit, including Donald Trump Jr.; the son of Michael Flynn, Trump’s fired national security adviser; and Trump associate and political consultant Roger Stone.

The account was also retweeted by conservative media commentators like Fox News host Sean Hannity, Fox Business Network host Lou Dobbs, author Ann Coulter and conspiracy theorist Alex Jones.

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Troubling and Maybe Unconstitutional: Alabama Governor Does Not Dismiss Idea of Rescheduling Senate Election, Which Is Already Underway

NYT:

“I’m not aware of any time in the history of the state when the governor changed the date of an election when the election was already in mid-stride,” Mr. Merrill said. “We had a primary and a runoff, and now we have a general election in 29 days.”

Governor Ivey has already rescheduled the Senate election once after she became governor following the resignation of her predecessor, Robert Bentley, amid a sex and corruption scandal. Before she would do so again, she wants support from President Trump, according to Republicans in touch with her camp.

It is very troubling, and could well be unconstitutional, to cancel this election already underway simply for partisan advantage.

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“Investigation Reveals Widespread Violations of Federal Voting Rights Law in Arizona”

Release:

An investigation by voting rights groups revealed Arizona agencies are persistently violating the National Voter Registration Act (NVRA), which Congress enacted to increase opportunities to register to vote and simplify the registration process. The groups detailed their findings and demanded action in a formal notice letter sent today to Arizona Secretary of State Michele Reagan.

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“Trump, Twitter, and the Russians: The Growing Obsolescence of Federal Campaign Finance Law”

Tony Gaughan has posted this draft on SSRN (forthcoming, Southern California Interdisciplinary Law Journal).  Here is the abstract:

Since the 1970s, federal campaign finance law has been built on four pillars. The first is contribution limits on donations to candidate campaigns and political party committees. The contribution limits are designed to reduce the role of money in politics by preventing large donors from corrupting elected officials. The second is the ban on foreign contributions to American political campaigns. The prohibition is intended to prevent foreign influence on American elections and to ensure that candidates rely exclusively on American sources of support for getting their campaign messages out to voters. The third is the mandatory public disclosure of the identities of campaign contributors. Disclosure laws are intended to enable voters to evaluate the sources of a candidate’s support and to guard against corruption. The fourth pillar is the Federal Election Commission, which is charged with enforcing the law in an effective and bipartisan manner.

The 2016 presidential campaign made it starkly apparent that all four pillars of federal campaign finance law have become woefully outdated in the age of the internet, social media, and non-stop fundraising. First, contribution limits have not only failed to reduce the role of money in politics but have instead severely distorted our political system. Second, the federal ban on foreign contributions failed to prevent a massive level of foreign intervention in the 2016 presidential election. Third, FECA’s requirement that all contributions to political committees be reported and publicly disclosed no longer keeps the public adequately informed. Fourth, FECA’s foundational presumption that the FEC would enforce the law in a bipartisan and vigorous fashion has collapsed amid finger-pointing, personal acrimony, and profound ideological divisions among the commissioners.

A vestige of the post-Watergate reforms of the 1970s, FECA no longer adequately regulates the campaign finance world of 21st century American politics. The time has come for a sweeping reform and restructuring of the law. This article proposes 4 major reforms to modernize federal campaign finance law: the elimination of FECA’s contribution limits, the closing of the dark and gray money loopholes, the clarification and expansion of federal regulation of foreign government influence on American elections, and the fundamental restructuring of the FEC. By adopting those reforms, FECA will finally be brought out of the 1970s and into the age of the internet, iPhones, Twitter, and Facebook.

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“In Idaho, program to fight voter fraud may cause more problems than it catches”

Idaho Statesman:

Ada County elections employees have been leery of the Interstate Voter Registration Crosscheck Program since 2014 — the year they got burned by it.

It was Idaho’s first year as a member. Ada County received a list of possible duplicate voter registrations and began to revoke several thousand of them, including then-West Ada School District Superintendent Linda Clark, radio personality Ken Bass and former U.S. Attorney and prominent Democrat Betty Richardson.

Those voters began to call. What appeared to be duplicate records, weren’t at all. When the county realized it was in error, it quickly halted the revocations….

Former Idaho Secretary of State Ben Ysursa worked for the office for 28 years, then served as its chief officer for another 12 until his retirement in early 2015. Though he is the one who first signed Idaho up for Crosscheck, he said Friday that he cannot recall any significant cases of voter fraud while he was in office.

“Looking for voter fraud in Idaho? I do not think it is there,” he said.

He also cast doubt upon allegations of widespread voter fraud in the U.S.: “It is looking for a needle in haystack, but the question is if the needle is even there.”

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