It’s dangerous because Trump is now strongly suggesting that people take election-law matters into their own hands by calling for a red-shirted army of vigilante poll watchers to fall into formation. There is a clear history of racist bullying that comes with this kind of desperado poll-monitoring, and here’s what that’s already starting to look like…
What will become of the ACLU’s position on campaign finance and the First Amendment with David in charge?
Alice Ollstein for Think Progress.
Westlaw’s headnote of the day.
Sounds like it from this Tarini Parti Buzzfeed report.
WaPo on the ingratiation and access:
The price of entry to see Hillary Clinton on Sunday evening was $50,000 per person, a sum that got you an al fresco meal of tomato and mozzarella salad, lobster, strawberry shortcake and an intimate conversation with the possible next president of the United States.
“It was the easiest event I’ve ever done,” said Elaine Schuster, a longtime Clinton friend who hosted the soiree at her waterfront home on Cape Cod, Mass. “Everyone wanted to come.”
Not everyone could, of course: Just 28 people joined Clinton for cocktails and dinner in Schuster’s back yard. The Democratic nominee has spent much of August in such exclusive environs, helping her campaign and the party scoop up at least $32 million in three weeks as part of a nonstop press of high-dollar fundraisers.
Clinton has touted her growing support from small contributors, whose donations of $200 or less made up nearly 40 percent of her campaign’s $62 million haul in July.
But the former secretary of state devoted much of this month to seeking big money to finance the Democratic Party, a race for cash that has taken her from Greenwich, Conn., to Nantucket, Mass., to Beverly Hills, Calif. The fundraising drive has served as a reminder of her deep and decades-long connections to some of the country’s wealthiest figures, a jarring contrast with her efforts to cast herself as an ally of those left out of prosperity.
Jon Grinspan NYT oped looks at the question through lens of history.
Bryan Lowry for the Wichita Eagle:
A national dark money group has revived a 2-year-old controversy involving a Kansas Supreme Court justice and filed an ethics complaint with the state’s Commission on Judicial Qualifications.
The Foundation for Accountability and Civic Trust, which is based in Washington, D.C., sent a letter to commission on Aug. 19 asking it to investigate Justice Carol Beier over a political fundraiser her husband hosted for Democrat Paul Davis in 2014.
“Justice Beier needs to be held accountable for her careless behavior because even the mere appearance of impropriety calls into question her impartiality and erodes the public’s trust in our government,” said Matthew Whitaker, the group’s executive director, in a news release announcing the complaint Monday….
The foundation’s website says that it’s an “organization dedicated to promoting accountability, ethics, and transparency in government and civic arenas by hanging a lantern over public officials who put their own interests over the interests of the public good.”
The foundation is a 501(c)(3) organization and therefore not required to disclose its donors under federal law.
Arnold said in an e-mail that “FACT actually doesn’t know who its donors” because it receives it funding through DonorsTrust.
Open Secrets, a website which tracks political spending, has described DonorsTrust as “a pass-through vessel” which enables wealthy donors, such as Charles Koch, to remain anonymous when giving to political advocacy groups.
A federal appeals court will decide whether Kansas has the right to ask people who register to vote when they get their driver’s licenses for proof that they’re citizens.
The decision could affect whether thousands of Kansas residents have their ballots counted in November’s election.
Three judges from the 10th Circuit Court of Appeals heard arguments in the case Tuesday from Kansas Secretary of State Kris Kobach and the American Civil Liberties Union but didn’t indicate how soon they could rule.
Kansas wants the court to overturn a ruling by a federal judge in May that temporarily blocked the state from disenfranchising people who registered at motor vehicle offices but didn’t provide documents such as birth certificates or naturalization papers. That was about 18,000 people at the time.
If the order is allowed to stand, the state says up to an estimated 50,000 people who haven’t proven they’re citizens could have their votes counted in the fall.
Jonathan Stein for HuffPo. [corrected link]
Patrick Marley: “AG Brad Schimel will not seek SCOTUS review of 7th Circuit’s early voting decision. Madison/MKE plans for early voting in Sept stay in place.”
I had pegged the chances of emergency relief from the Supreme Court in this case as quite low.
A regular appeal of these rulings will go to the 7th Circuit.
Smart move by WI not to create additional uncertainty about early voting at this point.
UPDATE: Marley has more.
Via Chris Geidner, comes this emergency motion to get the Johnson/Weld ticket on the Ohio ballot listed as Libertarians. (It is uncertain if Johnson/Weld might make it on the ballot as independent candidates without a party label should this petition be denied. FN 7 of the motion explains: “Ohio law provides a separate procedure (which is not being challenged here) for independent presidential tickets. The Johnson/Weld campaign (after being denied recognized LPO status) on August 10, 2016 submitted the papers and signatures needed to qualify as an independent presidential ticket in Ohio. Certification of independent candidacies is expected the week of August 22, 2016. Assuming Johnson/Weld were to be certified as an independent ticket and survive official protests, it (unlike the established parties’ presidential tickets) will still not represent LPO as a political party, will not be listed as the “Libertarian” ticket on Ohio’s ballot, and cannot meet Ohio’s 3% vote test on behalf of LPO in order to win for it qualified political party status in Ohio in future elections.”)
This is a serious petition raising a substantial issue. It would not be the first time that the Supreme Court has considered ballot access for the presidential election. But it is uncertain to me what the Court will do in this case, especially given that ballots need to be printed in one week (August 30) according to the petition. Perhaps the results will turn on what the state announces about whether the Johnson/Weld ticket qualifies independently, though I can see this argument cutting either way.
Also unclear to me whether Trump or Clinton would benefit more from having the Libertarians on the ballot. It could be that the issue is so uncertain both parties will want the Libertarians off the ballot.
More from Ballot Access News.
At least 85 of 154 people from private interests who met or had phone conversations scheduled with Clinton while she led the State Department donated to her family charity or pledged commitments to its international programs, according to a review of State Department calendars released so far to The Associated Press. Combined, the 85 donors contributed as much as $156 million. At least 40 donated more than $100,000 each, and 20 gave more than $1 million.
Update: I gave a listen. This was a very active panel which questioned both sides. But it does seem that Kobach got a harder time from the judges.
That’s rich, given his position in the John Doe case.
Leslie Savan for The Nation.
For those using Dimino, Smith & Solimine, Voting Rights and Election Law (2d ed., 2015), a 2016 supplement is now available free.
A divided panel of the 6th Circuit has reversed a trial court ruling and allowed the Ohio Legislature to eliminate “Golden Week,” a week in which a new or moving voter who needs to reregister could both register to vote and cast an early ballot. The trial court had found that the elimination of this period, despite an extensive period of early voting (29 days) and the availability of no-excuse absentee voting across the state, violated both the equal protection clause of the U.S. Constitution and Section 2 of the Voting Rights Act. The 6th Circuit majority held that Ohio’s early voting period was generous, that the current period was the result of a settlement of an earlier case between the state and the ACLU which resulted in an additional Sunday voting period, and that plaintiffs’ theory in this case, if accepted, which would create a “one way ratchet” that would prevent states from ever cutting back on voting expansions even if they have a good reason to do so. The majority celebrated the ability to states to set election rules for themselves, and said that under the Supreme Court’s Crawford case, the state did not have to show much by way of state interests in preventing voter fraud and supporting voter confidence to allow it to take the step of eliminating Golden Week.
The dissent believed the trial court’s factual finding that the elimination of Golden Week burdened voters, especially minority voters, was entitled to deference, and that the federal roles have a more important role in assuring the fundamental right to vote. To the dissent, the trial court through a 10 day trial fully followed the fact-intensive nature of the Section 2 inquiry under the Voting Rights Act and found the law burdened minority voters impermissibly.
I have been very skeptical of this litigation, mostly for the reasons given by the majority in the outset of this opinion. Ohio’s early voting/no excuse absentee balloting period is exceedingly generous. And while I might support Golden Week as good policy, I worry when courts are used in this way to prevent every cutback in voting, especially after voting rights proponents had settled a suit with Ohio on favorable terms (very favorable given that the legal theory advanced, especially under Equal Protection, seemed rather weak). I also have worried, and worry, that cases like this make bad law when there are more serious voting cutbacks, although this opinion is written in such a way that major damage appears to have been avoided.
So what happens next? The plaintiffs could accept this or go to the 6th Circuit en banc or to the Supreme Court. I am not enough of a nose-counter of 6th Circuit judges to know how the case would come out, but I’d point out that the 6th Circuit in the analogous context of Bush v. Gore-type claims to equal treatment of voters has been the most pro-voter in the country. So I’m not sure how things would fare there. The Supreme Court, with its 4-4 ideological split, seems to work against plaintiffs now (as it works against North Carolina in the NC voting case). Where will plaintiffs get a fifth vote to restore early voting? Hard to see even Kennedy buying into the expansive voting theory in this case, especially given the strong majority opinion in the 6th Circuit.
So it seems to be the 6th Circuit en banc or bust here.
[This post has been updated.]
Then please consider my student treatise/study aid with questions and answers covering all these topics. It works with all the major casebooks in these courses (see the correlation table below):
Several Republican-authored laws restricting early voting in Wisconsin remain struck down after a federal appeals court declined a request to reinstate them Monday.
The brief order by the 7th Circuit Court of Appeals in Chicago increases the likelihood that Madison, Milwaukee and other communities will be allowed to start in-person absentee voting sooner rather than later. Madison’s City Clerk has said she plans to offer in-person absentee voting starting Monday, Sept. 26, which would be earlier than ever before.
The great Todd Purdum in Vanity Fair.
For Roberts, the case tests his prevailing view in the decision in Shelby County v. Holder to eliminate the Voting Rights Act’s preclearance decision on the ground that things have changed in the South since the law was enacted in 1965. The recent spate of voter ID laws and other vote suppression laws provides an ironic confirmation of sorts: disenfranchising minority voters is now practiced not just in the South but in other states, such as the once-progressive Wisconsin. Still, Texas and North Carolina carried vote suppression further than any of the states to the north.
Steve Benen for MSNBC.
Jonathan Bernstein for Bloomberg View.
Michael Wines at the NYT with an important, underreported story.
Donald Trump portrays himself as an indispensable cash resource for fellow Republicans up and down the ballot.
But while Trump is pulling in donor checks, an Associated Press review of campaign finance filings shows most of his fellow Republicans are still waiting for their cut. And the 2016 presidential nominee has a lot of work to do to if he wants to match the amount of financial aid Mitt Romney gave to his party four years ago.
The crown prince of Bahrain, whose government gave more than $50,000 to the Clintons’ charity and who participated in its glitzy annual conference, wanted a last-minute meeting with Secretary of State Hillary Clinton.
U2 rocker and philanthropist Bono, also a regular at foundation events, wanted high-level help broadcasting a live link to the International Space Station during concerts.
In each case, according to emails released Monday from Hillary Clinton’s time as secretary of state, the requests were directed to Clinton’s deputy chief of staff and confidante, Huma Abedin, who engaged with other top aides and sometimes Clinton herself about how to respond.The emails show that, in these and similar cases, the donors did not always get what they wanted, particularly when they sought anything more than a meeting.
But the exchanges, among 725 pages of correspondence from Abedin disclosed as part of a lawsuit by the conservative group Judicial Watch, illustrate the way the Clintons’ international network of friends and donors was able to get access to Hillary Clinton and her inner circle during her tenure running the State Department.
Justice Kennedy in Citizens United told us that influence and access is not corruption. Even if it is not, it raises serious equality issues.
Noah Lindell has posted this student comment on SSRN (forthcoming, Yale Law Journal). Here is the abstract:
The Supreme Court’s decision in Williams-Yulee v. The Florida Bar watered down First Amendment strict scrutiny analysis for judicial elections. The Court’s trend toward ever-greater scrutiny of campaign finance laws came into conflict with a compelling need to regulate. This Comment argues that the Court should have avoided this outcome by folding campaign finance laws into the Burdick sliding-scale test used for other election regulations. The Burdick test requires courts to conduct a more tailored analysis of the actual harm caused by the law at issue, before determining the level of scrutiny to be applied. Laws like the judicial ethics canon at issue in Williams-Yulee, which do not create severe burdens on individuals’ rights, can therefore be upheld without applying––and thereby weakening––strict scrutiny analysis. But because the Burdick test is based on the need for state regulation of elections, it is only appropriate if one believes that campaign finance is part of the regulable election apparatus in the first place.
Election lawyer Bryron McKim has passed away.
Joe Burns: “Bryon was one of the great up and coming NY Republican election lawyers. Brilliant, talented and energetic. It’s a great loss to all of us in the field in NYS.”
Condolences to Bryon’s family and friends.
When Trump says” You know what I’m talking about?,” this is code for look out for black and brown people cheating.
Legal action should be taken to insure that the Trump campaign does not organize any efforts at voter intimidation. And even if this is just puffing, there’s the real danger that Trump supporters go rogue.
Election protection efforts will be more important than they have been in decades, especially with the loss of federal observers after the Supreme Court’s decision in Shelby County.
Interesting event Sept. 28 in NYC.
Miami-Dade commissioners agreed Monday to start counting nearly 130,000 signatures tied to a proposed ballot item on new campaign-finance rules, but warned they still might kill the proposal over stern concerns raised by county lawyers.
The 9 to 0 vote came during the second emergency meeting this month called to consider the ballot measure backed by unions, local Democrats and others. The proposed rules would impose a broad package of restrictions against campaign and committee donations by county vendors and lobbyists — prime sources of financial support for county officeholders.
“I’m prepared to vote yes, but with a very, very large ‘but,’ ” said Commissioner Sally Heyman, a lawyer who cited what she said were legal shortcomings in the proposed item….
Monday’s session also opened a new line of attack against the proposal, with county lawyers warning the submitted ballot language contains significant legal flaws, including the presumption that the current finance system conveys “an appearance of ethical impropriety” in county government.
“This question is misleading,” said Oren Rosenthal, an assistant county attorney who specializes in election law. “The ballot is no place for political rhetoric and subjective evaluations. The ballot question potentially runs afoul of this restriction.”
A new bill sponsored by Assemblyman Marc Levine (D-San Rafael) would legalize so-called “ballot selfies” and allow citizens to share photos of themselves voting on social media.
“People are taking pictures of their dogs, they’re taking pictures of their dinner, so let’s take pictures of voting,” Levine said in an interview. “It’s time to make voting cool and ubiquitous, and ballot selfies are a powerful way to do that.”
The 7th Circuit has just denied a request for a stay in the second voting case involving WI rollback of early voting etc.
This ruling is from the same panel that granted the stay in the affidavit voter id case (Easterbrook, Sykes, Kanne.). If Wisconsin could not convince these judges to order a stay in this case, there is no hope of going to the 7th Circuit en banc. The only hope would be an emergency stay request at the Supreme Court. Given the closeness to the election, the state would have to move very soon for the Court to even consider such a stay. Even then, getting over the 4-4 ideological split seems iffy. If you can’t get Easterbrook, you likely can’t get Kennedy.
The fact that the court denied the stay without issuing an opinion could be a sign that the court recognizes the urgency of the time. An opinion can come later when there is an appeal on the merits. It could be a sign that the issues raised by Wisconsin are frivolous.
What this means: Wisconsin needs to go ahead and let localities [corrected] continue to set voting hours and otherwise implement the judge’s order.
Still pending at the full 7th Circuit en banc is the question of what to do about the affidavit requirement to soften Wisconsin’s strict voter id law, which the trial court in the first Wisconsin case put in place and which the 7th Circuit panel stayed.
It ain’t quite over folks, but we are getting there in Wisconsin.
[This post has been updated.]