“Cybertraining Election Officials For This Year’s Voting”

The great Pam Fessler reports for NPR (before she goes on a year-long book leave):

It was clear that many of those gathering in Orlando already have protections in place and are well aware of the risks. But some county election offices are extremely small, with no IT staff of their own. Dana Southerland runs elections in Taylor County, which has only 13,000 voters. She said she picked up some useful tips, such as changing passwords and being careful about opening e-mails.

“Making sure that it’s not a phishing e-mail or something like that. I had no idea what that was until we started having some of these workshops,” she said.

Southerland — who is also President of the Florida State Association of Supervisors of Elections and helped organize the session — said perhaps the most important message is that no one is immune from attack, and they have to be prepared.


“Elections and Redistricting Expert Jeffrey M. Wice Joins Rockefeller Institute of Government”

Congrats to Jeff Wice! Release:

Albany, NY — The Rockefeller Institute is pleased to announce that Jeffrey M. Wice, nationally renowned expert on elections and redistricting, is joining the Institute as a research fellow. Wice brings more than 35 years of experience working in redistricting, voting rights, and census law.
“I’m proud to welcome Jeff Wice to the Rockefeller Institute team,” said Rockefeller Institute President Jim Malatras. “With public trust in elections eroding and the 2020 census on the horizon, his work on election and census law is vital and timely. I look forward to working together to bring much-needed objective research and analysis to bear on these issues.”

Wice has consulted on redistricting and voting rights matters for members of Congress, state legislative leaders, and state and local government officials around the country. He has been included in Roll Call‘s list of top 50 Washington policy insiders.

Wice currently serves as staff co-chair of the Redistricting and Elections Standing Committee of the National Conference of State Legislatures (NCSL). He serves as “of counsel” to Sandler Reiff Lamb Rosenstein & Birkenstock, P.C., is a fellow at SUNY Buffalo Law School, and has taught election law at Hofstra Law School and the Touro Law Center.

League of Women Voters Files SCOTUS Opposition to Stay in Pa Congressional Gerrymandering Case; SCOTUS May Rule in This and NC Stay Case At Any Time


Applicants’ ostensible hook for federal intervention is an Elections Clause theory that this Court has squarely rejected in decisions dating back nearly a century. To accept Applicants’ theory, this Court would need to overrule no fewer than six of its precedents, all upholding the power of state courts to review and remedy unconstitutional congressional districting plans. In these circumstances, Applicants cannot seriously maintain that this Court will grant certiorari or reverse. Their stay applications are just a ploy to preserve a congressional map that violates Pennsylvania’s Constitution for one more election cycle.

This Court need not take our word for it. For months, Applicants in No. 17A795 (“Legislative Applicants”) have been telling federal courts in separate suits challenging Pennsylvania’s 2011 map that, under settled precedent, they must defer 2 to Pennsylvania state courts. They told this Court that federal courts would be “usurp[ing] the power of the Pennsylvania state courts” to review and remedy the map, and just last week they persuaded a federal court to grant a stay in deference to this state court action. Legislative Applicants cannot now obtain a stay of the state court’s judgment on the theory that state courts have no power in this realm.

The Court may rule on this stay request, and the North Carolina stay request, at any time. Maybe Monday?  I expect there will be no stay granted in either case and that there will be dissents, but then again I did not expect Justice Alito to even ask for a response in the PA case given how longshot the argument is.


Update: It looks like the recusal argument may be waived.


“About 25% of Trump’s Re-election Spending Continues to Go to Lawyers”


President Trump’s re-election campaign raised $15.2 million in the last three months of last year, and spent $1.2 million on legal fees — with much of the cash going to law firms responding to investigations of Russian meddling in the 2016 presidential election — according to campaign finance reports….

The second biggest recipient of legal fees in Wednesday’s reports — McDermott Will & Emery, which was paid $214,000 — is representing Michael D. Cohen, Mr. Trump’s longtime lawyer and adviser, in the Russia investigations.

Mr. Cohen referred a question about the legal fees to the Trump campaign. Michael Glassner, the executive director of the Trump campaign, did not respond to an email asking whether the campaign was covering Mr. Cohen’s legal costs.


“A ‘Blue’ Florida? There Are No Quick Demographic Fixes for Democrats”

Nate Cohn for NYT’s The UpShot:

Democrats could be forgiven for dreaming about a “blue” Florida. It is diversifying as fast as Texas or Arizona, and the demographic composition of its electorate may be poised to shift even faster than anticipated.

As many as 300,000 people have fled to Florida from Puerto Rico in the aftermath of Hurricane Maria. And a ballot initiative this November could return the vote to the state’s estimated 1.5 million discharged felons. At first glance, either tally of these two Democratic-leaning groups would seem to dwarf Donald J. Trump’s 113,000-vote margin of victory in the state in 2016.

But the reality for Democrats is that neither development is likely to fundamentally alter Florida’s political character heading into the 2020 election.

The main reason? The electoral effect dwindles after accounting for the relatively low turnout rates among these groups. More generally, even big demographic shifts that seem to favor Democrats could easily be swamped by other demographic shifts that do the opposite.


“Report: Oregon Large Political Donors Outmatched Small Donors 14 to One in 2016”


Days before the Oregon Legislature convenes for a month-long session and considers a proposal to make changes to how elections are financed, OSPIRG Foundation released a report examining the sizable disparity between large donors and small donors in Oregon’s elections. The report finds that in the 2016 election season, just over 700 large donors contributed nearly fourteen times more than all small donors combined – a group comprised of an estimated 31,000 donors.

“One person, one vote. That’s how it’s supposed to work,” said Charlie Fisher, State Director of OSPIRG Foundation and co-author of the report. “Unfortunately, in Oregon large donors and special interests are able to have a louder voice than everyone else, simply as a result of the size of their pocketbook. This undermines our democracy and leaves everyday people out in the cold.”

The report, “Big Money in Oregon State Elections” finds that in the 2016 election alone:

  • Approximately 31,000 donors contributed $250 or less, totaling $2.5 million.

  • In contrast, the 723 large donors that gave $5,000 or more contributed over $34.9 million.

  • Just the largest 25 donors accounted for $16.3 million, outspending all small donors 6.4 to 1.

  • While ballot measure races had the largest gap, significant disparities exist between large and small donors across the board. For candidate races in 2016, just over 400 large donors gave nearly four times that of all small donors.

  • A significant portion of large donor money came from out of state. Of total money given to campaigns by large donors, only 44 percent came from donors in Oregon; of campaign contributions made by small donors, almost 80 percent came from state residents.


“Judge rules Florida’s arbitrary felon voting rights restoration scheme unconstitutional; remedy not immediately ordered”

Release via email:

United States District Court Judge Mark E. Walker ruled Florida’s voting rights restoration scheme violates the First Amendment rights of free association and free expression, and the Fourteenth Amendment of the United States Constitution. The decision, issued today, affirmed that the First Amendment protects the right to vote – “the beating heart of our democratic government” – and concluded that the process by which Florida officials grant or deny former felons’ restoration of voting rights applications is unconstitutionally arbitrary. Judge Walker ordered further briefing from the parties on the appropriate remedy. Florida’s former felons still cannot register or vote.

“The question is whether the Clemency Board’s limitless power over Plaintiffs’ vote-restoration violates their First Amendment rights to free association and free expression. It does. This should not be a close question,” Judge Walker stated in the decision.

The lawsuit was filed in March 2017 by the national voting rights organization, Fair Elections Legal Network, and the law firm, Cohen Milstein Sellers & Toll PLLC, on behalf of a proposed class of almost 1.5 million former felons who have completed their full sentences.

Citing a long line of Supreme Court cases striking down laws which give officials unrestricted power to control First Amendment rights, the Court concluded that the absence of any constraints on the Executive Clemency Board’s power to restore or deny voting rights “risks—if not covertly authorizes the practice of—arbitrary and discriminatory vote-restoration.”

“Today a federal court said what so many Floridians have known for so long—that the state’s arbitrary restoration process, which forces former felons to beg for their right to vote, violates the oldest and most basic principles of our democracy,” said Jon Sherman, Senior Counsel at Fair Elections Legal Network. “While the Court has yet to order a remedy in this case, it has held in no uncertain terms that a state cannot subject U.S. citizens’ voting rights to the limitless power of government officials.”

The Court’s order also stated that, “In Florida, elected, partisan officials have extraordinary authority to grant or withhold the right to vote from hundreds of thousands of people without any constraints, guidelines, or standards. The question now is whether such a system passes constitutional muster. It does not.”

“We are very happy with the Court’s ruling as it provides our country’s most basic rights to be restored to those who have served their time. No longer can politicians arbitrarily deny fundamental rights to citizens of the State of Florida,” said Theodore Leopold, partner with Cohen Milstein Sellers & Toll.

The decision concluded, “If any one of these citizens wishes to earn back their fundamental right to vote, they must plod through a gauntlet of constitutionally infirm hurdles. No more.”

Florida is one of four states that denies the right to vote to all former felons until they petition for rights restoration, and this process is the target of the lawsuit. About 1.5 million Floridians are currently disenfranchised even after completing their sentences, including men and women of all different political parties, races, ethnicities, ages, from cities and rural areas, as well as veterans, small business owners and others. Over 10,000 former felons are waiting for a hearing on their restoration applications.

The lawsuit cited the lack of any rules governing the Executive Clemency Board’s decisions to grant or deny applications and contended that the arbitrary rights restoration process violates the U.S. Constitution and hinders former felons from truly reentering society.

The text of the decision can be found here.

One big question: will this take the wind out of the sails of the ballot measure to restore voting rights to Florida’s felons who’ve completed their sentences?


“N.C. has the worst gerrymander in US history. What else is new?”

Gene Nichol oped in the News & Observer:

In mid-January, yet again, a three-judge federal court ruled the redistricting work of the North Carolina General Assembly to be a knowing, intentional and hugely impactful violation of the U.S. Constitution. This time the court struck down the apportionment of our federal congressional districts as an impermissible, extreme, partisan political gerrymander – designed, admittedly and successfully, to entrench Republicans in power and handicap their adversaries. The state yawned. We’re used to it.

Rick Hasen, a professor at California-Irvine, is often said to be the nation’s leading election law expert. Hasen wrote that the decision could hardly be seen as a surprise, given what our legislature did. “If there is any case that could be invalidated as a partisan gerrymander, it is this one,” he indicated. It is “the most brazen and egregious” political electoral distortion yet seen in the United States. North Carolina leaders “admitted the practice, but argued it should be seen as perfectly legal.”

The Supreme Court stayed the federal court ruling pending appeal. And it is unlikely the review will be squeezed into the current term, given the late scheduling adjustments that would be demanded. The court presently has two political gerrymandering cases on the docket. But Hasen thinks the impact of the North Carolina decision will be felt immediately. The court now knows “what the future of gerrymandering will look like if it is doesn’t act in the Wisconsin or Maryland cases,” Hasen wrote. We point the way to darkness.


March 6 ACS Georgetown Law Event with Adam Liptak and Sue Bloch: “Justice of Contradictions: Discussing Scalia’s Legacy”

I hope to see some of my D.C. friends and readers at this great event sponsored by the ACS Georgetown chapter:

Justice of Contradictions: Discussing Scalia’s Legacy

March 6, 2018
12:15 PM – 1:30 PM
Event Location:
McDonough 202
600 New Jersey Ave NW
Washington, DC 20001
Details: In his upcoming book Professor Hasen argues that the late Justice Scalia “disrupted American jurisprudence in order to delegitimize opponents and establish a conservative legal order.” On March 6th Professor Richard Hasen and Professor Susan Bloch, a longtime friend of the late Justice, will be discussing the new book and Scalia’s controversial life and legacy in a small panel moderated by the NewYorkTimes Adam Liptak.

Lawyer Chapter(s):
Student Chapters:
Georgetown University Law Center




“The Minimal Persuasive Effects of Campaign Contact in General Elections: Evidence from 49 Field Experiments”

Joshua Kalla and David Broockman have written this article for APSR. Here is the abstract:

Significant theories of democratic accountability hinge on how political campaigns affect Americans’ candidate choices. We argue that the best estimate of the effects of campaign contact and advertising on Americans’ candidates choices in general elections is zero. First, a systematic meta-analysis of 40 field experiments estimates an average effect of zero in general elections. Second, we present nine original field experiments that increase the statistical evidence in the literature about the persuasive effects of personal contact tenfold. These experiments’ average effect is also zero. In both existing and our original experiments, persuasive effects only appear to emerge in two rare circumstances. First, when candidates take unusually unpopular positions and campaigns invest unusually heavily in identifying persuadable voters. Second, when campaigns contact voters long before election day and measure effects immediately—although this early persuasion decays. These findings contribute to ongoing debates about how political elites influence citizens’ judgments.


Today’s Must Read: “Zombie Campaigns: The campaign is over. The candidate might be dead. But the spending never stops.”

This is something from the Tampa Bay Times:

IT’S BEEN MORE THAN A DECADE since South Florida Rep. Mark Foley was forced out of Congress for sending sexual text messages to teenage boys.

But Foley tapped his congressional campaign fund to dine on the Palm Beach social circuit four times in early 2017, ending with a $450 luncheon at the Forum Club of the Palm Beaches.

Then there’s baseball-star-turned-senator Jim Bunning of Kentucky. He paid his daughter $94,800 from campaign money in the four years after he left office, only stopping when he’d bled his fund dry.

And over the past 17 months, political advisor Dylan Beesley paid his firm more than $100,000 from the campaign account of Hawaii Congressman Mark Takai for “consulting services.”

It’s hard to imagine what Beesley advised. Takai was dead that whole time.

In their political afterlife, former politicians and their staffers are hoarding unspent campaign donations for years and using them to finance their lifestyle, advance their new careers and pay family members, an investigation by the Tampa Bay Times10News WTSP and TEGNA-owned TV stations found.

Their spending makes a mockery of one of the fundamental principles of America’s campaign finance laws: Donations must be spent only on politics, not politicians’ personal lives.

Times/WTSP reporters analyzed more than 1 million records detailing the spending of former U.S. lawmakers and federal candidates. They found roughly 100 of these zombie campaigns, still spending even though their candidate’s political career had been laid to rest.


Federal District Court Issues Preliminary Injunction Barring NC Legislature’s Elimination of Partisan Primaries for Electing State Appeals and State Supreme Court Judges

You can find the opinion here.

In light of the state apparently offering no reason at all for why it made this change as to appellate judges, the federal court’s decision makes a lot of sense. It might be a very different case if the state came forward with important reasons for the change. As it is, the system looks to create bedlam at the polling place:

Further, the character and magnitude of S.L. 214’s burden is more substantial for appellate judges than for local judges. These judges run statewide, and in 2018 these partisan races will lead the statewide ticket.10 The legislature has decided that judicial races should be partisan, but by giving candidates complete control over party designation, abolishing primaries of any kind, and failing to provide another mechanism for reducing the number of candidates on the general election ballot, the partisan political parties are restricted in their ability to support a particular candidate for these statewide offices and to disassociate at the general election stage from candidates who are not reflective of the parties’ goals in judicial elections. See Doc. 14-1 at ¶¶ 10-12.

This burden is not hypothetical. In 2014, when a vacancy on the court of appeals was decided without a primary, 19 candidates were on the general election ballot. Doc. 14-1 at ¶ 16. After the 2014 general election, the State Board of Elections issued a report on voter wait times, Doc. 14-6 at ¶ 3, which among other things indicated significant problems with voter confusion in the court of appeals race; in counties with certain kinds of voting machines, this confusion and the long ballots were contributing factors to delays. Id. at 8 (noting that the spoilage of ballots resulting from voter confusion over the court of appeals race as contributing to the need to change paper rolls more often, thus removing a voting machine from availability, and, later, noting the long ballot contributed to voter wait times). The winner in that race received only 23% of the vote, just as had happened in 2004 when there were eight candidates for a supreme court seat. Doc. 14-1 at ¶ 16.


“CLC Report: U.S. Elections Remain Vulnerable to Foreign Influence”


Today, Campaign Legal Center (CLC) released a report detailing the vulnerabilities of American elections to foreign interference that were exposed in the 2016 presidential election. The report outlines solutions for addressing this most urgent issue, which would protect the integrity of our democracy for the upcoming 2018 elections and beyond.

Foreign interference is a democracy issue, and the importance of addressing it goes far beyond the 2016 election. It is about protecting the foundations of our representative form of government, particularly in a world where political advertising is increasingly moving online. From the targeted theft of emails from political parties, to purported offers of opposition research, from a secret social media advertising campaign, to attempted hacking of state election systems, the 2016 elections showed that foreign interference could come in many forms. Our system was not equipped to handle it. In 2018, these threats could come from Russia again, or any number of other foreign countries or actors with an interest in influencing or disrupting U.S. democracy. The report is written by six authors and is a byproduct of a full-day event hosted by CLC in October 2017 convening legal experts, academics, journalists, and practitioners from across disciplines to address the pressing matter of foreign interference in U.S. elections.


DOJ Drops Menendez Indictment: What Does It Say About the Supreme Court’s Approach to Political Bribery? Not What You May Think

News today that DOJ, after a hung jury the last time, has dropped the remaining charges against Sen. Menendez (some were dropped by the judge after the first trial). Much of the reason for the problems with the charges against Menendez stem from the Supreme Court’s McDonnell case, which some read as giving a green light to all kinds of improper conduct that is now immune from prosecution.

I confess that I did not see McDonnell as having this effect when it was decided, writing that given the way the statutes were written the Supreme Court’s unanimous decision reversing the conviction was the right thing to do. And Dan Tokaji blogged about what he saw as the overreaction to McDonnell

But in prosecutions from Sheldon Silver to William Jefferson to Menendez, the ruling is being felt. It now looks like elected officials can accept gifts and engage in all kinds of odious behavior without running afoul of bribery and related rules.

But remember that the unanimous McDonnell case was about how to read the statutes governing bribery. There should be room to tighten up those statutes and to impose much stricter gift bans to deal with a lot of these problems. Indeed, stricter gift bans would have solved the problems in a number of these cases, without running afoul of the First Amendment or the Due Process Clause.

Some of these decisions are regrettable given the conduct we’ve seen from elected officials for which they face no punishment. But it would be more regrettable not to tighten up the bribery and gift rules to deal with future cases like these.


North Carolina Republicans May Not Be Done Trying to Mess with Composition of State Election Boards


Gov. Roy Cooper wants the legal wheels to spin faster after the North Carolina Supreme Court tossed out laws governing the makeup of a combined state elections and ethics board, hoping that will let him seat a new elections board quickly….

Rep. David Lewis of Harnett County, who helped shepherd the law that was the focus of the decision, said Tuesday that the Republican legislators would respond to Cooper’s request to the Supreme Court as soon as possible.

“That option is certainly still on the table,” Lewis said, adding he “would certainly expect some action by the General Assembly in the next few weeks.”


“The Supreme Court’s Past, Present and Future”–Mar. 20 Event at UCI Law with Adam Winkler Discussing Our New Books

This should be great fun:

The Supreme Court’s Past, Present and Future

Tuesday, March 20, 2018
5:30-6:30 p.m.
UC Irvine School of Law, EDU 1111 (Directions)
RSVP to come >


UCI Law presents The Supreme Court’s Past, Present and Future, a conversation with UCLA Law Prof. Adam Winkler and UCI Law Prof. Rick Hasen to discuss their newly released books:

We the Corporations: How American Business Won Their Civil Rightsby Adam Winkler


The Justice of Contradictions: Antonin Scalia and the Politics of Disruption by Rick Hasen

(Reception and book signing to follow)


“Klobuchar Accuses Tech Companies of Stalling ‘Honest Ads’ Bill”

Bloomberg BNA:

The primary sponsor of legislation to require more information about who’s paying to get voters’ attention says her online advertising bill probably is going nowhere in this election year.
Gathering enough support to get the bill enacted is “hard when a lot of the companies don’t want it done,” Sen. Amy Klobuchar (D-Minn.) said Jan. 30. “That’s our problem.”
The bill titled the Honest Ads Act (S. 1989), cosponsored by Sens. John McCain (R-Ariz.) and Mark Warner (D-Va.), would require disclosure of sources of funding behind paid political ads carried by big online platforms. It would give the Federal Election Commission the authority to require disclosure of sponsors of online ads that focus on elections and issues that could influence elections.
The legislation also would require ad sellers to make reasonable efforts to prevent foreign influence in U.S. elections.
Representatives of Google, Facebook and Twitter have been summoned to Capitol Hill to testify about political messages paid for by Russian sources. U.S. intelligence agencies have concluded Russia sought to intervene in the election to help elect President Donald Trump. Central Intelligence Agency Director Mike Pompeo, in an interview with the BBC, said he expects Russia to target the U.S. midterm elections.

“Latino Org In Chaos After Its Prez Goes Rogue, Endorses Trump Immigration Plan”


On Tuesday, several Republican congressional leaders touted to reporters that Trump’s immigration proposal had been endorsed by the League of United Latin America Citizens (LULAC)—a Latino civil rights group that for years has advocated for a path to citizenship for young immigrants known as Dreamers.

While LULAC’s president Roger Rocha did in fact write a letter to President Trump over the weekend thanking him for “taking the lead” on immigration reform and declaring that the White House framework was one “LULAC can support,” staff at the organization tell TPM that they were completely blindsided by Rocha’s action and were not consulted before the letter was sent.

“Literally nobody on staff knew about it. He sent that letter on his own,” LULAC policy manager Juan Perez told TPM. “None of the board members knew. We don’t even know whether the letter went straight to the White House or to Capitol Hill as well. We’re getting calls from so many Hill offices about it, and we’re just trying to figure out what’s going on and put out the fire.”


“Draft FEC Rules Target Political Ads on Social Media”


The U.S. Federal Elections Commission is moving forward with a plan to introduce new rules on political advertising on social media ahead of the 2018 election cycle.

 The commission has a working draft of the rules in front of it now, longtime Democratic FEC Commissioner Ellen Weintraub said Monday at a technology conference in Washington, though she divulged few details.
  “I’m hoping that we are going to be able move this rule-making forward within this election cycle,” Weintraub, one of five members of the bipartisan FEC commission, said. A sixth spot on the commission remains vacant.
 The FEC agreed in late 2017 to come up with new rules after congressional committees hammered social media companies about how their platforms were used by Russian state agents to increase discord during the 2016 presidential election. Most lawmakers want rules that apply the same disclosure requirements that TV and radio ads have to the internet.
The FEC’s draft rules focus narrowly on ads that directly advocate for a particular candidate, rather than the broader threshold some lawmakers have proposed that would require disclosure for ads about any issue of “national legislative importance.”

“Millions of Voters Will Cast Ballots in November in Unconstitutionally Gerrymandered Districts”

Pema Levy for Mother Jones:

This fall, millions of voters will cast ballots in legislative districts that have been deemed unconstitutional. Courts have repeatedly tossed out Republican-drawn electoral maps for excessive gerrymandering, but those maps will remain in effect through November, potentially changing who controls Congress and state legislatures for the next two years.

The blame lies with the Supreme Court. In Texas, North Carolina, and Wisconsin, Democratic plaintiffs have successfully convinced federal district courts that their states’ political maps unconstitutional. Those courts have ordered new maps to be drawn. But the Supreme Court has halted that process repeatedly, causing voters to be stuck in unfairly drawn districts for yet another election cycle….

Texas is a cautionary tale, highlighting the multiple ways in which the Supreme Court has shaped redistricting litigation to favor legislators who act in bad faith to gerrymander their districts. Rick Hasen, an election law expert at the University of California, Irvine School of Law, blames a Supreme Court doctrine that discourages courts from changing voting laws close to an election to avoid confusion. Originally, the court applied this principle to issues like voter ID laws and precinct closures. But in recent years, he says, it’s crept into redistricting cases, delaying the implementation of new maps by years. “It encourages litigation tactics that stretch things out as long as possible to try to get it to the next election period,” says Hasen. In many district-level elections held every two years, he says, “there’s always an election around the corner.”


“Russia ‘will target US mid-term elections’ says CIA chief”


Mike Pompeo told the BBC there had been no significant diminishing of Russian attempts at subversion in Europe and the US….

Asked if his concerns extended to the upcoming US mid-term elections in November, he replied: “Of course. I have every expectation that they will continue to try and do that, but I’m confident that America will be able to have a free and fair election [and] that we will push back in a way that is sufficiently robust that the impact they have on our election won’t be great.”


Quote of the Day: Partisan Gerrymandering Edition

“I liked working for them in ’02,…“because I’d sit down with a lawyer and they’d say, ‘I like competitive maps. When a map is competitive, we can win on the merits.’ By the time I get around to 2011, they’ve changed. I can’t defend this crap.”

Keith Gaddie, on his work with Wisconsin Republicans on redistricting, quoted in NYT’s “Like Abstract Expressionists, They Draw the Free-Form Political Maps Now Under Scrutiny.”




Justice Alito (Belatedly) Calls for Response in PA Congressional Gerrymandering Case

After a strange period of delay which I thought signaled a denial of a stay was coming in this case, Justice Alito has requested a response in this case, due Friday Feb. 2 at 4 pm.

(The petitioner Republican legislators wanted a ruling from the Court by 1/31.)

Maybe the response is necessary for someone to write a dissent from the denial of the stay?


“The Coming Storm? Hush Money and the Federal Election Campaign Act”–On Trump at That $130K to Stormy Daniels

Important analysis by Thomas Frampton at the Harvard Law Review blog:

In August 2016, federal law enforcement and intelligence officials were alerted to an unsettling possibility: then-candidate Trump’s personal indiscretions might leave him susceptible to the threat of Russian blackmail. We now know that, as the election drew near, those close to Trump were also fretting about other kompromat — albeit of a more homegrown variety. The threat of one particular disclosure was serious enough that Trump’s personal lawyer Michael Cohen reportedly “arranged a $130,000 payment to a former adult-film star” to procure a non-disclosure agreement, funneling the funds through a hastily formed Delaware LLC to a representative of Stormy Daniels.

But in making such a payment, those involved may have broken the law. The watchdog group Common Cause has alleged as much in an FEC complaint, relying on the same statutory provisions used by federal prosecutors to indict and try former Senator John Edwards. Edwards ultimately beat the criminal charges, thanks in part to defense attorney Abbe Lowell, now counsel to Jared Kushner. But if the reports of a secret pre-election payment to Daniels are accurate—and there are still many important unknowns, which I’ll discuss—key obstacles that thwarted federal prosecutors in 2011 will not be in play.

If nothing else, the extraordinary sequence of events in October 2016 sheds light on how aggressively Trump, or those in his immediate orbit, responded to the threatened release of damaging personal information. This behavior alone is notable and should be of interest to those investigating L’Affaire Russeand Trump’s susceptibility to blackmail. But the recent reports are also unsettling because, in their haste to ensure Daniels’s pre-election silence, Trump’s lawyer and others may have violated the Federal Election Campaign Act of 1971 (FECA). After a year dominated by allegations of collusion between the Trump campaign and Russia, it is collusion between the Trump campaign and a former porn star that may pose the greater legal peril to the presidency….