“Donald Trump Challenges Russia to Find Hillary Clinton’s Missing Emails”

NYT:

Donald J. Trump said Wednesday that he hoped Russia had hacked Hillary Clinton’s email, essentially sanctioning a foreign power’s cyberspying of a secretary of state’s correspondence.

 “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing,” Mr. Trump said, staring directly into the cameras. “I think you will probably be mightily rewarded by our press.”

Mr. Trump’s call was an extraordinary moment at a time when Russia is being accused of meddling in the U.S. presidential election. His comments came amid questions about the hacking of the Democratic National Committee’s computer servers, which researchers have concluded was likely the work of two Russian intelligence agencies.

Later in the news conference, when asked if he was really urging a foreign nation to hack into the private email server of Mrs. Clinton, or a least meddle in the nation’s elections, he dismissed the question. “That’s up to the president,” Mr. Trump said, before finally telling the female questioner to “be quiet — let the president talk to them.”

 Glenn Thrush: “Inciting a foreign power to commit a felony on US soil is an interesting development in a U.S. presidential campaign IMHO.”
I’ve tweeted some thoughts on this very disturbing development.
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Unique and Important “Case Study” Database of Emergency Election Litigation Created by Federal Judicial Center

Back in 2012, I first noted this resource under development. This database at the Federal Judicial Center has now grown to over 340 cases, and is a treasure trove of data. For some of the cases, it gives some information not available elsewhere, such as a judge’s reasoning not in any written opinion but contained only in a transcript.

Here’s another example, from the write-up on the Purcell v. Gonzalez case (which is the origin of the controversial Purcell Principle on timing of emergency election litigation).  One of the issues in the case is that the district court denied a request for a preliminary injunction of Arizona’s voter id law, pending a trial on the merits, without immediately giving written reasons for denying the stay. Plaintiffs then sought a stay from the Ninth Circuit, which issued the stay of the law, also without giving reasons. The case ended up at the Supreme Court with the Court reversing the Ninth Circuit, which criticized the courrts for not giving reasons.

Here’s a very fascinating tidbit from the write up:

On September 11, Judge Silver declined to interfere with the next day’s primary election and denied the plaintiffs a preliminary injunction.17 She issued findings of fact and conclusions of law on October 12.18 On interlocutory appeal, however, a motions panel of the court of appeals enjoined application of proposition 200 on October 5.19 The Supreme Court vacated the injunction on October 20.20 In its per curiam opinion, the Supreme Court scolded the district court for not providing the court of appeals with findings of fact and conclusions of law more promptly: “These findings were important because resolution of legal questions in the Court of Appeals required evaluation of underlying factual issues.”21

Following a tradition in the Ninth Circuit, where district judges are encouraged to bring misunderstandings to the attention of appellate judges, Judge Silver wrote the Chief Justice in an effort to explain the difficulties of striking a balance between quick action and a complete record.22 (my emphasis)

Wow.

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“DNC sought to hide details of Clinton funding deal”

Vogel:

But the emails show that officials and lawyers at the DNC and the Clinton campaign became frantic after POLITICO’s May 2 story, which led to substantial follow-up coverage that put the Clinton campaign and the DNC on the defensive. It led the Sanders campaign to accuse the Clinton campaign of “money laundering” and prompted Politifact to downgrade its rating — from “mostly true” to “half true” — of the claim that the bulk of the money collected by the victory fund would go to down-ballot Democrats.

“The DNC should push back DIRECTLY at Sanders and say that what he is saying is false and harmful to the Democratic party,” Marc Elias, an attorney who advises the DNC and the Clinton campaign, wrote in an email to DNC officials.

CEO Amy Dacey responded “I do think there is too much of this narrative out there — I also worry since they are emailing to their list (which has overlap with ours!)”

In another email, Miranda, the communications director, suggested that the campaign tell other journalists seeking to follow POLITICO’s story that “Politico got it wrong.” But the rest of his email failed to indicate any errors in POLITICO’s story, nor did the DNC or the Clinton campaign seek a correction.

 

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“Gianforte Wants ‘Misleading’ Campaign Ads Pulled”

Montana Public Radio:

Republican candidate for governor Greg Gianforte is pressuring local TV stations to stop running an ad that he says falsely calls him “a millionaire from New Jersey.”

Earlier this month, Gianforte’s attorneys sent a cease-and-desist letter to Montana broadcasters calling on stations to refuse to air what they call a false and misleading advertisement.

Here is the cease and desist letter written by James Bopp, who successfully challenged Montana’s truth in campaigning law as a First Amendment violation.

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“Leaks show DNC asked White House to reward donors with slots on boards and commissions”

Open Secrets:

Email exchanges involving top officials at theDemocratic National Committee released along with private documents by WikiLeaks show that DNC officials hoped to reward top donors and insiders with appointments to federal boards and commissions in coordination with the White House.

The revelations give an inside look into how the Democratic Party attempted to leverage its access and influence with the White House to bring in cash.

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“Spy Agency Consensus Grows That Russia Hacked D.N.C.”

NYT:

WASHINGTON — American intelligence agencies have told the White House they now have “high confidence” that the Russian government was behind the theft of emails and documents from the Democratic National Committee, according to federal officials who have been briefed on the evidence.

But intelligence agencies have cautioned that they are uncertain whether the electronic break-in at the committee’s computer systems was intended as fairly routine cyberespionage — of the kind the United States also conducts around the world — or as part of an effort to manipulate the 2016 presidential election.

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“Temporary Legislation, Better Regulation and Experimentalist Governance: An Empirical Study”

Ittai Bar-Siman-Tov has posted this draft on SSRN. Here is the abstract:

This article presents the findings of an extensive multi-method empirical study that explored the relationship between temporary legislation, better regulation, and experimentalist governance. Temporary (or “sunset”) legislation, statutes enacted for a limited time and set to expire unless their validity is extended, is often hailed as a key tool for promoting experimental and better regulation. Despite the importance of temporary legislation and the bourgeoning theoretical scholarship on the subject, there is still a dearth of empirical studies about how temporary legislation is used in practice. The lack of empirical evidence creates a lacuna in at least three areas of theoretical scholarship, concerning temporary legislation, better regulation, and experimentalist governance. This paper is a first step in filling this gap.

 

The paper has recently won the Giandomenico Majone Prize, awarded by the European Consortium for Political Research’s Standing Group on Regulatory Governance, for the best conference paper at its 6th Biennial Conference on ‘Between Collaboration and Contestation: Regulatory Governance in a Turbulent World’ at Tilburg Law School.

Looking forward to reading this!

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“A Partisan Model of Electoral Reform: Voter Identification Laws and Confidence in State Elections”

Shaun Bowler and Todd Donovan have written this article for State Politics and Policy Quarterly. Here is the abstract:

We propose a model of public response to politicized election reform. In this model, rival partisan elites send signals on the need and consequences of a proposed reform, with partisans in public adopting those positions. We apply this to test how state use of voter identification laws corresponded with public evaluations of the conduct of a state’s elections. We find that the relationship between photo identification laws and confidence in state elections was polarized and conditioned by party identification in 2014. Democrats in states with strict photo identification laws were less confident in their state’s elections. Republicans in states with strict identification laws were more confident than others. Results suggest strict photo identification laws are failing to instill broad-based confidence in elections, and that the reform could correspond with diminished confidence among some

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Read the Order Blocking Michigan’s Repeal of Straight Ticket Voting

Following up on this post, here is the decision of the District Court finding the elimination of straight ticket voting violates both the Voting Rights Act and the Constitution’s equal protection clause.

The state of Michigan has appealed, so now there is a Michigan case joining a couple of Ohio election cases at the Sixth Circuit.

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Read the St. Petersburg Ordinance Set Up as Challenge to Legality of Super PACs

Release:

Last night, on Thursday 21, 2016,  the St. Petersburg City Council voted 6-1 to move forward for consideration our proposed ordinance to abolish super PACs and ban foreign corporate money in local elections.  The vote followed passionate statements made by many St. Petersburg residents who attended this discussion and packed the city council hearing room.  American Promise-Tampa Bay, the League of Women Voters of St. Petersburg, and other allies played a critical role in showing the public support for this proposed ordinance.

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“Report: FEC leaders, managers share blame for horrid morale”

CPI:

Bickering commissioners, ineffective managers and lousy internal communication rank among the top reasons why the Federal Election Commission staff is one of the federal government’s most bedraggled.

That’s the dispiriting — if unsurprising — conclusion of a new report from the FEC’s Office of Inspector General, which for months had conducted employee surveys and interviews in hopes of answering a nagging question: why, specifically, is agency morale so consistently rotten?

Investigators dump the most blame on the FEC’s six commissioners: three Democratic appointees and three Republican appointees who have regularly criticized one another and frequently (but not exclusively) deadlocked on high-profile political issues before them.

I discussed the low morale problem at the FEC with FEC Commissioners in 2 ELB podcasts:

# 7 Ellen Weintraub

# 11 Lee Goodman

 

 

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“In Hacked D.N.C. Emails, a Glimpse of How Big Money Works”

NYT:

But the leaked cache also included thousands of emails exchanged by Democratic officials and party fund-raisers, revealing in rarely seen detail the elaborate, ingratiating and often bluntly transactional exchanges necessary to harvest hundreds of millions of dollars from the party’s wealthy donor class.

The emails capture a world where seating charts are arranged with dollar totals in mind, where a White House celebration of gay pride is a thinly disguised occasion for rewarding wealthy donors and where physical proximity to the president is the most precious of currencies.

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Quote of the Day

“As some of you may know, I support Bernie Sanders and the movement behind him. And Bernie has already succeeded in so many ways. He proved that Citizens United is in fact not a necessary evil, and by the way, Citizens United, isn’t that such a beautiful name for something that means billionaires buying politicians? Good lord. Rails against the very spirit of our democracy. And I’m very glad that Hillary has vowed to overturn it.”

Sarah Siverman at the DNC

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Jack Goldsmith on Whether Foreign Powers Could Hack Our Elections

Ugh:

Is the election aspect of this hack unique?

There have been reports in recent years of cyberattacks or cyberoperations in computer networks in other countries related to elections. Still, if this if a Russian (or some other foreign governmental) operation, I know of nothing parallel on this scale, with this impact. And yet, as I wrote this morning, “the Russian hack of the DNC was small beans compared to the destruction of the integrity of a national election result.” Presumably the DNC email hack and leak involve genuine emails. But what if the hackers interspersed fake but even more damning or inflammatory emails that were hard to disprove? What if hackers break in to computers to steal or destroy voter registration information? What if they disrupted computer-based voting or election returns in important states during the presidential election? The legitimacy of a presidential election might be called into question, with catastrophic consequences. The DNC hack is just the first wave of possible threats to electoral integrity in the United States—by foreign intelligence services, and others.

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“What the DNC email leak reveals about Arizona’s election lawsuit”

Arizona Republic:

Also revealed was email correspondence about the federal lawsuit the Democrats filed against Arizona in the wake of Maricopa County’s polling-place debacle that resulted in hours-long lines for voters wanting to cast ballots in the state’s March 22 presidential preference election, or primary.

The plaintiffs include the DNC; the Democratic Senatorial Campaign Committee, the party’s arm dedicated to electing Democrats to the U.S. Senate; the Arizona Democratic Party; and the campaign of U.S. Rep. Ann Kirkpatrick, D-Ariz., who isrunning for incumbent Republican U.S. Sen. John McCain’s seat this year.

In the emails, officials with the DNC and the DSCC discussed their ambitious strategy to generate “earned media,” or news coverage and commentary, about the lawsuit. It included highlighting Kirkpatrick’s involvement to aid her Senate bid.

“Working with the DSCC, we placed a story in the Washington Post announcing the lawsuit on April 14, and published a Medium post from DNC CEO Amy Dacey on why we were filing suit,” Deshundra Jefferson, the DNC’s Southern regional communications director, wrote in an April 22 email to Luis Miranda, the DNC’s communications director. “The initial roll out generated well over 100 earned media mentions. Among our most prominent placements: CNN, MSNBC, the New York Times, U.S. News & World Report, Politico, AP, Reuters, the Guardian, and the Nation.”

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“Perkins Coie Lawyer’s Advice Helped Spark Democratic Division”

American Lawyer:

Perkins Coie’s Marc Elias, who has juggled legal roles for both the Hillary Clinton presidential campaign and the Democratic National Committee, saw the intersecting interests of both clients unexpectedly become public on Friday with the leak of thousands of DNC emails posted by Wikileaks.

The emails, including at least one authored by Elias, have roiled the Democratic Party nomination process because they indicate that some DNC officials tried to sabotage Bernie Sanders’ campaign. DNC chairman Debbie Wasserman Schultz resigned on Sunday over the controversy, and she was loudly heckled by Sanders supporters during an appearance on Monday at the Democratic National Convention in Philadelphia.

At least five Perkins Coie lawyers, including Elias, who is the general counsel for Clinton’s campaign, and Democratic Party mainstay Robert Bauer, are included in email exchanges in which DNC staffers discuss strategy. In one email, Elias, the chair of Perkins Coie’s political law practice, urged DNC officials to attack Sanders for allegedly lying when Sanders accused the DNC of improperly using campaign funds to help Clinton.

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Don McGahn, Trump’s Lawyer, Opines on Trump’s Likely SCOTUS Choices

Via Right Wing Watch:

The Supreme Court was a major topic at the event, as it was throughout the convention, where the court was cited frequently as the ultimate reason for conservative voters to back Trump despite whatever qualms they might have.

Making that point most extensively was Trump counsel McGahn, who called the list of 11 potential Supreme Court nominees released by the Trump campaign the most important insight into how Trump will govern. “For those conservatives who are on the fence…I would counsel them to take a very hard look at this list and I would also counsel them to take a very hard look at what’s at stake in this election.”

McGahn said the list presents “a defining moment” and “a very, very, very clear choice for Americans.” It contains no moderate or “squishy” judges, he said, “no stealth candidates” and “no David Souters.” A number of them, he noted, clerked for Justice Clarence Thomas or the late Justice Antonin Scalia.

“Everyone on the list is already wearing a black robe,” McGhan said. He explained that there were a number of state Supreme Court justices on the list because many conservative “rising stars” whose age puts them in the “sweet spot” for a Supreme Court nomination are not on the federal bench:

Frankly, anyone in what I consider to be the sweet spot barely had an opportunity to be considered for chance to be considered for a federal court appointment in the last Republican administration so I think the rising stars who are conservative, conservative-libertarian, movement conservative, whatever one wants to label themselves, constitutionalist, textualist, etc., etc., are really going to be found on the state courts, simply because that’s where we are generationally.

McGahn did praise by name a few of the federal judges on the list, including William Pryor and Diane Sykes. And he mentioned state Supreme Court justices Allison Eid of Colorado and Don Willett of Texas, an anti-regulatory judge whose opinion in a Texas licensing case McGahn called “a manifesto on economic liberty we have not seen in our lifetime.”

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“DNC Seeks Dismissal of Lawsuit Alleging Donor Deception”

Jacob Gershman for the WSJ Law Blog:

Claims that Democratic Party leaders conspired to squash the presidential primary campaign of Sen. Bernie Sanders have not only led to a party shake-up but have sparked class-action litigation.

A trove of hacked party emails posted by WikiLeaks show that Democratic National Committee officials had worked to undermine the underdog campaign of Mr. Sanders.

Weeks before the firestorm erupted, culminating in the resignation of party chief Debbie Wasserman Schultz, a group of plaintiffs brought a lawsuit in federal court alleging that DNC “actively concealed its bias” from its donors and Democrats backing Mr. Sanders.

The plaintiffs, about 150 of whom are identified in the lawsuit, are mostly Sanders supporters and include a number of DNC donors.

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“Voter ID lawsuits sowing confusion”

Reid Wilson for The Hill:

In recent weeks, several courts have issued rulings blocking or upholding the laws, but those rulings have at times been contradictory, sowing even more confusion.

The suits, which have spent years in a maze of federal courts, focus mainly on laws passed by Republican-led legislatures after the 2010 midterm elections. Those laws, voting rights advocates say, are part of a determined strategy to restrict access to the ballot box.

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“U.S. attorney opens probe of Malloy’s 2014 campaign fundraising”

CT Mirror:

The federal investigation is a major political complication for Malloy at time when he is in the spotlight as chairman of the Democratic Governors Association and a campaign surrogate for Hillary Clinton. She will become the first woman to win a major-party nomination for president next week at the Democratic National Convention, where Malloy is expected to speak.

It comes after a thinly veiled public appeal by Charles Urso, a retired elections investigator and FBI agent, for a deeper look at how Malloy accepted $6.5 million in public financing, which required him to sign an affidavit promising to abide by spending restrictions and contribution of no more than $100, and also benefitted from state contractor contributions of up to $10,000 to the state party.

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“Convention Delegates Win Settlement in Free Speech Lawsuit Against Federal Election Commission”

Release:

Two delegates to the Republican National Convention settled a lawsuit on Friday against the Federal Election Commission (FEC), Two Unnamed Plaintiffs v. FEC. These delegates were represented by attorneys from the Pillar of Law Institute, which was also a plaintiff in the case. The delegates and Pillar brought suit in Wyoming federal court due to a ban against giving any assistance to delegates by corporations, even non-profits.

 

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“As Democrats Gather, a Russian Subplot Raises Intrigue”

David Sanger for the NYT:

Proving the source of a cyberattack is notoriously difficult. But researchers have concluded that the national committee was breached by two Russian intelligence agencies, which were the same attackers behind previous Russian cyberoperations at the White House, the State Department and the Joint Chiefs of Staff last year. And metadata from the released emails suggests that the documents passed through Russian computers. Though a hacker claimed responsibility for giving the emails to WikiLeaks, the same agencies are the prime suspects. Whether the thefts were ordered by Mr. Putin, or just carried out by apparatchiks who thought they might please him, is anyone’s guess….

It may take months, or years, to figure out the motives of those who stole the emails, and more important, whether they were being commanded by Russian authorities, and specifically by Mr. Putin. But the theft from the national committee would be among the most important state-sponsored hacks yet of an American organization, rivaled only by the attacks on the Office of Personnel Management by state-sponsored Chinese hackers, and the attack on Sony Pictures Entertainment, which Mr. Obama blamed on North Korea. There, too, embarrassing emails were released, but they had no political significance. The WikiLeaks release, however, has more of a tinge of Russian-style information war, in which the intent of the revelations is to alter political events. Exactly how, though, is a bit of a mystery, apart from embarrassing Democrats and further alienating Mr. Sanders’s supporters from Mrs. Clinton.

Evidence so far suggests that the cyberattack was the work of at least two separate agencies, each apparently working without the knowledge that the other was inside the Democrats’ computers. It is unclear how WikiLeaks obtained the email trove. But the presumption is that the intelligence agencies turned it over, either directly or through an intermediary. Moreover, the timing of the release, between the end of the Republican convention and the beginning of the Democratic one, seems too well-planned to be coincidental.

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“Leaked DNC emails reveal the inner workings of the party’s finance operation”

WaPo:

The DNC emails show how the party has tried to leverage its greatest weapon — the president — as it entices wealthy backers to bankroll the convention and other needs. At times, DNC staffers used language in their pitches to donors that went beyond what lawyers said was permissible under a White House policy designed to prevent any perception that special interests have access to the president.

Top aides also get involved in wooing contributors, according to the emails. White House political director David Simas, for instance, met in May with a half-dozen top party financiers in Chicago, including Fred Eychaner, one of the top Democratic donors in the country, the documents show….

Last year, the DNC, in consultation with Clinton’s campaign, also decided to reverse a ban on donations from the PACs of corporations, unions and other groups.

After those limits were lifted, DNC Chairwoman Debbie Wasserman Schultz and other top party officials showered corporate lobbyists with calls, emails and personal meetings seeking convention support and PAC contributions to the party, according to a spreadsheet logging the contacts.

In one May email, a DNC finance staffer asked whether the conglomerate Honeywell could get a hotel room in Philadelphia for a $60,000 donation to the host committee.

“This is $60k we definitely wouldn’t get otherwise and Honeywell is the biggest PAC contributor in the country,” she wrote, adding: “They’re definitely a bit pissy about our PAC policy flip flop and that offering this gesture would definitely help our relationships with them for later in the election cycle and for years to come.”

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“Presidential Election Will Shape Supreme Court, and National Policies, for Years to Come”

Jess Bravin for the WSJ:

A single Democratic appointment to the Supreme Court could doom the 2010 Citizens United decision, which struck down restrictions on corporate and union political spending. That ruling and other opinions invalidating campaign finance laws came on 5-4 conservative majority votes that said restrictions on finance amounted to a restraint of free speech. A Clinton appointee almost certainly would join liberal justices who dispute that analogy and have signaled an intent to significantly narrow or overrule the Citizens United ruling.

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Does Gary Johnson Not Understand How the 12th Amendment Works?

From the Ryan Lizza New Yorker story:

“If it gets thrown to the House of Representatives and it goes beyond one ballot, I could be President,” Johnson said, smiling at the absurdity of the idea. “Because, if it goes beyond one ballot, Democrats are not going to cross over the line to change to Trump, and Republicans are not going to go over the line to support Clinton. They’re going to have to compromise, and I’d be the compromise.”

The 12th amendment provides that if no one gets a majority for President the House votes by state, and it is hard to imagine the Republican not chosen by the House.

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For a Virginia Governor, Writer’s Cramp and Advil

Richmond Times-Disptach:

In response, McAuliffe said he will “expeditiously” sign roughly 13,000 individual rights restoration orders for people who have already registered to vote. He said he’ll continue until rights are restored for all 200,000 people affected by the original order.

“Once again, the Virginia Supreme Court has placed Virginia as an outlier in the struggle for civil and human rights,” McAuliffe said in a written statement. “It is a disgrace that the Republican leadership of Virginia would file a lawsuit to deny more than 200,000 of their own citizens the right to vote. And I cannot accept that this overtly political action could succeed in suppressing the voices of many thousands of men and women who had rejoiced with their families earlier this year when their rights were restored.”

McAuliffe’s statement did not give a timeline for when the policy will be repaired by individual orders. Data errors in McAuliffe’s list of felons believed to meet the order’s criteria will likely complicate the process by requiring more review to prevent irreversible mistakes.

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“Kaine’s acceptance of gifts in Virginia could create opening for Republicans”

WaPo:

There are stark differences between Kaine’s gifts and McDonnell’s. For one, Kaine’s gifts were properly disclosed; McDonnell failed to disclose some of what he received.

For another, Kaine has never faced accusations of promising state action in exchange for any of his gifts….

During his eight years as Virginia’s lieutenant governor and then governor, Kaine disclosed that he accepted $201,600 in personal gifts, according to data compiled from the Virginia Public Access Project, a nonpartisan tracker of money in state politics.

The majority of those gifts came in the form of air travel, including from the 2008 campaign of President Obama, which paid to fly Kaine across the country as a campaign surrogate. Under murky Virginia law, the proper way to disclose such political travel has been unclear; other politicians have disclosed it as a campaign contribution to their political action committee, rather than a personal gift, as did Kaine.

I also missed this earlier Politico piece:

Shortly after winning the governorship in 2005, Kaine and his family vacationed on the exclusive West Indies island of Mustique in a house belonging to Charlottesville-area investor James B. Murray Jr. Murray made a fortune investing in cellphones together with Kaine’s Senate predecessor, Mark Warner. Murray invited Kaine to spend a week at his house to relax after the campaign.

“I didn’t consider it a gift: There was no cash, I just let him use a house,” Murray said in an interview with Politico. “There was no quid pro quo. I don’t have any business with him.”

For the purpose of the disclosure, Kaine’s staff determined that $18,000 was the fair market value of a week’s stay. Kaine paid all his own expenses besides lodging.

“It’s just the kind of thing you do for a friend, but who’s to draw the line?” Murray said. “It’s probably better to declare everything.”

 

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“Trump Would Fund Super-PACs Aimed at Taking Down Cruz, Kasich”

Republican unity plan leaked to Bloomberg:

Donald Trump plans to create and fund super-PACs specifically aimed at ending the political careers of Ted Cruz and John Kasich should either run for office again, after both snubbed the Republican nominee during his party’s convention this week, a source familiar with Trump’s thinking told Bloomberg Politics on Friday.

The plan would involve Trump investing millions of his own money –perhaps $20 million or more — in one or two outside groups about six months before their respective election days if Texas Senator Cruz or Ohio Governor Kasich stand for office again. The source said Trump is willing to set up two separate super-PACs – one for Cruz and one for Kasich – and put millions into each.

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Breaking: Wisconsin Will Go to 7th Circuit to Block Softening of Voter ID Law: What’s Next?

Wisconsin will seek to reverse the order of the federal district court from earlier this week requiring election officials to allow those who lack the right form of ID to vote in WI elections to be able to vote upon signing an affidavit that they face a reasonable impediment in getting the right form of ID.

The suit will go to the 7th Circuit, presumably to the Easterbook-led panel again—the same court that sent the case back to Judge Adelman in the district court and told him to entertain a remedy for those voters who face special burdens in obtaining the right form of ID.

The motion for a stay filed in the district court previews the kinds of arguments that Wisconsin will make when, as is inevitable, the trial court denies this motion and an emergency motion is filed in the 7th circuit. The main arguments are that the affidavit is unnecessary, as the DMV procedures are good enough, and that in any case the affidavit is overbroad (because it would allow filling in “other” and any excuse for filing the id.

What will the 7th Circuit do?  I’m not sure. It would not surprise me if the court trimmed the id requirement back a bit. But it is possible that the court does nothing and sees how it goes this election, or that it rejects the affidavit entirely.

Whatever the 7th Circuit does could be taken en banc, and the last time that court divided 5-5 on what to do. That could happen again if the 7th Circuit gets rid of the affidavit entirely for the next election. [Update: Bill Groth reminds me: Since the 7th Circuit deadlocked 5-5 in Frank v. Walker, Judge Tinder, who voted with the Easterbrook faction to uphold the law, retired. There are now just 9 active judges with no confirmations imminent. Thus, there can’t be another 5-5 split if the case were to go en banc.” That could potentially be good news for supporters of the affidavit requirement.]

And the Supreme Court? I don’t expect there would be 5 votes to do anything, unless it is about an issue of making a change too close to the election.

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Breaking: VA Supreme Court on 4-3 Vote, Reverses Gov. McAuliffe’s Blanket Felon Reenfranchisement Order

You can find the 63 pages of opinions here.

This is a big blow both politically to Democrats (who would have gotten a boost from the restoration of voting rights to felons who had secured their sentences) as well as to the cause of felon reenfranchisement generally.

This decision is based upon interpretation of the Va Constitution, and there does not seem to be a path to the U.S. Supreme Court (not that there would be a majority to overturn this is any case). Much of the opinions are a debate about standing. Here is the money quote from the majority on the merits;

The assertion that a Virginia Governor has the power to grant blanket, group pardons is irreconcilable with the specific requirement in Article V, Section 12 that the Governor communicate to the General Assembly the “particulars of every case” and state his “reasons” for each pardon. This requirement implies a specificity and particularity wholly lacking in a blanket, group pardon of a host of unnamed and, to some extent, still unknown number of convicted felons. No such requirement exists in the United States Constitution, and thus, the text of Article V, Section 12 of the Constitution of Virginia undermines the Governor’s argument by analogy.

From one of the two dissents:

The merits of this case do not concern the issue of whether the Governor has done 18 something he has no right to do, but rather whether he has done what he has a right to do in an 19 unconstitutional manner. Indeed, it is particularly telling that the majority does not dispute the 20 fact that the Governor may remove an individual felon’s political disabilities for any reason he  chooses, including that he has served his sentence.  Moreover, the majority acknowledges that the Governor could use many individual orders to achieve the mass restoration of rights he sought to accomplish under the Executive Order. Thus, the majority, in essence, takes the position that the Suspension Clause requires the Governor to exercise his executive powers in a different, less efficient manner.

[This post has been updated]

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“Adelman provides a necessary safety net for voters”

Milwaukee Journal-Sentinel editorial:

Wisconsin’s voter ID law was a mistake from the start; a political talking point dressed up as policy, aiming to fix a problem that doesn’t exist. And although the law isn’t particularly onerous for most people, there are some for whom obtaining the necessary ID is substantially difficult. So difficult that some won’t — or won’t be able to — go through the hassle of getting one.

On Tuesday, U.S. District Judge Lynn Adelman threw those people a lifeline, or “safety net,” as he called it. Adelman issued a preliminary ruling allowing Wisconsin voters without photo identification to cast ballots by swearing to their identity. Good for Adelman; allowing people to use affidavits to vote opens the ballot door to those who otherwise might not cast a ballot.

Attorney General Brad Schimel said the ruling was disappointing but did not say whether the state would appeal it. It shouldn’t. Government should be encouraging more people to vote, not placing limits on those who legitimately can.

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