“Donald Trump Says Hillary Clinton’s Bodyguards Should Disarm to ‘See What Happens to Her’”

Chilling NYT lede:

Donald J. Trump once again raised the specter of violence against Hillary Clinton, suggesting Friday that the Secret Service agents who guard her voluntarily disarm to “see what happens to her” without their protection.

“I think that her bodyguards should drop all weapons,” Mr. Trump said at a rally in Miami, to loud applause. “I think they should disarm. Immediately.”

He went on: “Let’s see what happens to her. Take their guns away, O.K. It’ll be very dangerous.”

In justifying his remarks, Mr. Trump falsely claimed that Mrs. Clinton wants to “destroy your Second Amendment,” apparently a reference to her gun control policies.


“Some Republicans Acknowledge Leveraging Voter ID Laws for Political Gain”

Must-read Michael Wines NYT:

A senior vice president of the Metropolitan Milwaukee Chamber of Commerce, Steve Baas, had a thought. “Do we need to start messaging ‘widespread reports of election fraud’ so we are positively set up for the recount regardless of the final number?” he wrote in an email on April 6 to conservative strategists. “I obviously think we should.”

Scott Jensen, a Republican political tactician and former speaker of the State Assembly, responded within minutes. “Yes. Anything fishy should be highlighted,” he wrote. “Stories should be solicited by talk radio hosts.”

That email exchange, part of documents published by The Guardian on Wednesday with a report on Governor Walker’s political operations, was followed by a spate of public rumors of vote-rigging. A month later, legislators passed a state law requiring Wisconsin voters to display one of five types of approved photo IDs before casting ballots.

The Wisconsin statute was part of a wave of voter ID laws enacted in the last six years, mostly by Republican-controlled legislatures whose leaders claimed that cheating at the ballot box is a routine occurrence.

Yet academic studies and election-law experts broadly agree that voter fraud is not a widespread problem in American elections. Rather, they say, it is a widespread political tactic used either to create doubt about an election’s validity or to keep one’s opponents — in most cases, Democratic voters — from casting ballots.

In unguarded moments, some Republican supporters of the laws have been inclined to agree.



“Increasing Los Angeles’ Matching Funds Likely to Have a Big Impact on the Role of Small Donors; The Current Two-Tiered System Does Not”

The Campaign Finance Institute (CFI) has released a major new study of public campaign financing in the City of Los Angeles, co-authored by Michael J. Malbin and Michael Parrott. Malbin is CFI’s co-founder and executive director as well as Professor of Political Science at the University at Albany (SUNY). Parrott is a Research Analyst at CFI who completed his Ph.D. at the University of Maryland in May 2016. He will be an American Political Science Association Congressional Fellow in 2016-17.

Los Angeles is one of about a dozen cities in the United States to offer candidates partial or full public financing for municipal elections. Some form of a mixed private-public system has been in effect since 1990, but the city in 2013 increased the public matching fund rate from the old one-for-one match for the first $250 a donor gives to a candidate, to a two-tiered system that offers a two-to-one match in primaries and four-to-one in general elections.

With two elections under the new system’s belt, CFI compared the elections preceding the change (2009 and 2011) to the two elections after (2013 and 2015). The report focuses on the role of small donors because the City’s Charter declares increasing their role to be one of the goals of public financing. The study found that the current two-tiered system hasnot increased either the number or proportional importance of small donors in city elections.

After the 2015 election, the Los Angeles City Ethics Commission recommended six-to-one matching for both primary and general elections. Because the proposed rate would make the Los Angeles system similar to New York City’s, the CFI report estimates the potential impact of this new proposal by comparing pre-reform and post-reform elections in both cities. (It also checks the results in an Appendix by using a more complex research design that controls for the many differences between the two cities.)

The comparative analysis concludes that the commission’s recommendationswould be likely to enhance the role of small donors to city council candidates. However, achieving the same results for mayoral candidates may require stronger incentives. Recommendations are detailed in the full report, which is available here.

The study also documents the positive impact matching funds in both cities have in increasing the economic and racial diversity of the neighborhoods in which small donors reside.


“Senate Dysfunction Blocks Bipartisan Criminal Justice Overhaul”


A major criminal-justice overhaul bill seemed destined to be the bipartisan success story of the year, consensus legislation that showed lawmakers could still rise above politics and take on a serious societal problem.

Then the election got in the way. With Donald J. Trump demanding “law and order” and Senate Republicans divided on the wisdom of reducing federal mandatory minimum sentences, the effort that began with real promise stalled, and now its Senate authors acknowledge there is virtually no chance for action on the measure this year.

“I do believe it is over,” said Senator Richard J. Durbin of Illinois, the No .2 Democrat in the Senate, who put considerable effort into difficult negotiations with Republicans to strike a compromise. “We missed an opportunity.”

What remains is a stunning display of dysfunction given the powerful forces arrayed behind legislation meant to provide a second chance for nonviolent offenders facing long prison sentences while also saving tax dollars on prison costs.


“Anti-Trump Republicans: Don’t Waste Your Vote. Trade It.”

Vote trading ideas are back, this time on the NYT oped page (John Stubbs and Ricardo Reyes):

Republican voters who refuse to vote for Donald J. Trump are in a bind. They could vote for Hillary Clinton, but that means supporting a candidate whose positions likely run counter to their beliefs. Or they could vote for Gary Johnson, the Libertarian candidate, whose positions might be closer to their own but who stands almost no chance of winning a single state, let alone the White House.

Fortunately, there’s a precedent, and a solution: vote trading, which was first attempted during the 2000 election and which, thanks to today’s more robust internet, could make all the difference in a tight race.

Sixteen years ago, the concern was that votes for the left-leaning third-party candidate, Ralph Nader, could siphon off critical support for Al Gore in swing states like Florida. Gore supporters begged Naderites not to “throw away” their vote — an insinuation that Nader voters found offensive.

As the election neared, though, “Nader Trader” websites emerged. The idea was simple: A Nader supporter in Florida, where every vote mattered, could promise to vote for Mr. Gore — and, in exchange, a Gore supporter in a Democratic stronghold like Washington, D.C., would promise to vote for Mr. Nader.

It was a good idea, but in 2000, it didn’t work. Word didn’t spread fast enough, and the internet was still in its infancy. But it’s worth revisiting.

First, consider the size of the #NeverTrump Republican vote. In 2012 Ohio Republicans went 94 percent for Mitt Romney; President Obama received 5 percent of their votes and 1 percent went to “other.” This year, because of Mr. Trump’s candidacy, the percentage of Republicans who have indicated they are voting for Mrs. Clinton or Mr. Johnson or are unsure is 18.2 percent.

Why isn’t this illegal vote buying? California made that claim after 2000, and the 9th Circuit held that these were not binding promises, and they were a form of First Amendment protected speech.  Not clear if other courts would agree should this arise again. (Here’s the last of the Ninth Circuit’s opinions on this.)


“Legislating in the Shadows”

Chris Walker has posted this draft on SSRN (forthcoming Penn L Rev).  Here is the abstract:

Federal agencies are deeply involved in legislative drafting — both in the forefront by drafting the substantive legislation the Administration desires to submit to Congress and in the shadows by providing confidential “technical drafting assistance” on legislation that originates from congressional staffers. This technical drafting assistance helps Congress avoid considering legislation that would unnecessarily disrupt the current statutory scheme by leveraging agency expertise on the subject matter. But it also allows the agency to play an active yet opaque role in drafting legislation from the very early stages. In fact, the empirical findings presented in this Article, based on extensive interviews and surveys at some twenty federal agencies, suggest that agencies provide technical drafting assistance on the vast majority of proposed legislation that directly affects them and on nearly all such legislation that gets enacted.

The under explored yet widespread practice of legislating in the shadows has important implications for administrative law theory and doctrine and the conventional principal–agency bureaucratic model. On the one hand, this phenomenon perhaps supports the growing scholarly call that agencies should be allowed to engage in more purposivist interpretation (than their judicial counterparts) because of their expertise in legislative history and purpose and their role in statutory drafting. On the other, the phenomenon may cast some doubt on the foundations for judicial deference to agency statutory interpretations, in that agencies are intimately involved in drafting the legislation that ultimately delegates to the agencies the authority to interpret that legislation. In other words, many of the agency self-delegation criticisms raised against Auer deference could apply with some force to agency statutory interpretation and Chevron deference as well. Or we should at least be considering more closely the administrative state’s role in drafting legislation — especially drafting legislation in the shadows — when considering to what degree courts should defer to agency statutory interpretations. Such reconsideration is particularly warranted in light of the transparency concerns implicated by agency legislating in the shadows.

This looks like it will be a very important paper.


“Polling places become battleground in U.S. voting rights fight”


A Reuters survey found local governments in nearly a dozen, mostly Republican-dominated counties in Georgia have adopted plans to reduce the number of voting stations, citing cost savings and efficiency.

In seven of those counties, African-Americans, who traditionally back Democrats, comprised at least a quarter of the population, and in several counties the changes will disproportionately affect black voters. At least three other counties in Georgia dropped consolidation plans under public pressure.

While polling place cutbacks are on the rise across the country, including in some Democratic-run areas, the South’s history of racial discrimination has made the region a focus of concern for voting rights advocates.

Activists see the voting place reductions as another front in the fight over Republican-sponsored statewide voting laws such as stricter ID requirements that disproportionately affect minority and poorer voters who tend to vote for the Democratic Party.


“Hillary Clinton Takes Aim at Voters Drifting Toward Third Party”


WASHINGTON — Hillary Clinton and her Democratic allies, unnerved by the tightening presidential race, are making a major push to dissuade disaffected voters from backing third-party candidates, and pouring more energy into Rust Belt states, where Donald J. Trump is gaining ground.

With Mrs. Clinton enduring one of the rockiest stretches of her second bid for the presidency, her campaign and affiliated Democratic groups are shifting their focus to those voters, many of them millennials, who recoil at Mr. Trump, her Republican opponent, but now favor the Libertarian nominee, Gary Johnson, or the Green Party candidate, Jill Stein.

While still optimistic that the race will turn decisively back in Mrs. Clinton’s favor after the debates, leading Democrats have been alarmed by the drift of young voters toward the third-party candidates.

The principal “super PAC” supporting Mrs. Clinton’s candidacy, Priorities USA Action, has concluded from its polling and other research that the reluctance to embrace the Democratic nominee among those who intensely dislike Mr. Trump is not going away and must be confronted.

“We’ll be launching a multimillion-dollar digital campaign that talks about what’s at stake and how a vote for a third-party candidate is a vote for Donald Trump, who is against everything these voters stand for,” said Justin Barasky, a strategist for Priorities USA.


“State Police investigating voter registration fraud”


The Indiana State Police is investigating what it says are fraudulent voter registration forms in Marion and Hendricks counties.

The forms are among more than 28,000 submitted to county registration offices by a little-known group called the Indiana Voter Registration Project.

“We have determined at least 10 voter registration forms are confirmed to have fraudulent information,” said Dave Bursten, an Indiana State Police spokesman.

Bursten said a team of six detectives is working to determine whether other forms are also fraudulent. The FBI has also been briefed, he said.

“This is not an investigation that’s going to end in three days,” he said. “This is going to take time to peel back multiple layers of the onion.”

The group has no website and is not registered with the Indiana secretary of state’s office.


Trump-Bondi Timeline Doesn’t Let Trump Off the Hook

Yesterday I linked to a NY Times story which suggested that maybe the $25,000 from Trump to Florida AG Bondi was not meant to influence her choice on whether to go after Trump U fraud claims, on grounds that the check came after the matter came to light:

But documents obtained this week by The New York Times, including a copy of Mr. Trump’s check, at least partly undercut that timeline. Although the check was received by Ms. Bondi’s committee four days after the Sentinel report, and was recorded as such in her financial disclosure filings, it was actually dated and signed by Mr. Trump four days before the article appeared.

But now there is this from the Orlando Sentinel:

Part of Bondi’s claim has been ignorance –that she didn’t even know her office had been asked to probe Trump.

If so, she was just about the only one in her office who didn’t know what was going on.

I found emails from Aug. 30, 2013 — more than two weeks before Bondi’s campaign took the money from Trump — copied to Bondi’s chief of staff, deputy attorney general, assistant attorney general and spokeswoman that mention the New York Attorney General pursuing a case against Trump University and noting that Florida complaints were involved.

(My emphasis).

Will this new info appear in the NY Times?


“BREAKING: Virginia Supreme Court slaps down Republicans’ attempt to block ex-felons from voting”

Think Progress:

The Virginia Supreme Court rejected a petition from Republican leaders on Thursday that sought to hold Virginia Gov. Terry McAuliffe (D) in contemptfor restoring the voting rights of tens of thousands of ex-offenders ahead of the 2016 election.

McAuliffe attempted to automatically restore the rights of all 200,000 former felons in the state with an executive order back in April — bringing the state in line with nearly 40 others across the country that allow people to become full citizens again after serving their sentences.

But the state’s Republican leaders sued, claiming the governor had overstepped his legal authority. A narrow majority on the Virginia Supreme Court agreed, and the registrations of thousands of ex-offenders who had been hoping to vote for the first time in decades were put in jeopardy.

When McAuliffe attempted to get around the court order by signing each clemency petition individually, the Republican legislators sued him for contempt of court. Had the state Supreme Court accepted their arguments, thousands of ex-offenders in the state could have seen their voting rights re-appear and disappear twice in the span of just a few months.


2d Cir. Panel Rules from Bench at End of Oral Argument in Denying Candidate Bid to Get on Ballot

The WSJ reports:

A would-be contender for retiring U.S. Rep. Steve Israel’s seat won’t get his name on a primary ballot after monthslong legal battle, a federal appeals court ruled Wednesday.

A three-judge panel of the Second U.S. Circuit Court of Appeals in New York overturned a lower court decision calling for an Oct. 6 Republican primary in the state’s 3rd Congressional District, comprising portions of Nassau, Suffolk and Queens counties.

The decision brings to a close a long fight waged by Philip Pidot, a former fraud investigator who argued that he had been wrongfully barred from the GOP primary ballot in June.

That’s not so unusual. But what is unusual is that the United States Court of Appeals for the Second Circuit ruled orally from the bench on the question, vacating the injunction and reversing the district court.

Listen to the last ten seconds of the oral argument in the case.


“Local officials must identify Kansas voters affected by ruling”

Wichita Eagle:

Kansas county election offices are sorting through thousands of records to identify voters affected by a recent federal court order, according to Secretary of State Kris Kobach.

The U.S. Court of Appeals for the D.C. Circuit blocked Kansas and two other states from requiring proof of citizenship from people who register to vote using the federal form.

Kobach said the state’s voter database does not differentiate between people who register with the federal form and the state form, so local election officers will have to physically go through paper records of people who tried to register since January to determine which voters were affected by the ruling.

He estimated the number of people affected would be between 200 and 400 statewide.

The state began requiring voters to provide proof of citizenship, such as a birth certificate or passport, when they register to vote in 2013. Before this year, federal form registrants were allowed to cast ballots in federal elections regardless of whether they provided proof of citizenship.

The U.S. Election Assistance Commission decided in late January to allow Kansas, Georgia and Alabama to require proof of citizenship with the federal form. The League of Women Voters challenged the rule in court, prompting Friday’s order, which will allow these voters to participate in this year’s presidential election.

A separate case remains pending before the U.S. Court of Appeals for the 10th Circuit. That case concerns whether the state can require people who register at the DMV to provide proof of citizenship.


Mr. Justice Peter Thiel? Watch Senate Republicans Nuke the Filibuster for #SCOTUS Nominees if Trump Elected President

Today’s headlines show a Trump presidency is now more likely, and that a President Trump has told Paypal co-founder Peter Thiel he will be nominated to the United States Supreme Court. Thiel has some anti-democratic views, especially about the role of women.  According to HuffPo:

In a 2009 essay, Thiel wrote: “I no longer believe that freedom and democracy are compatible.” Part of the reason for that incompatibility, Thiel argued, was that women had gained the right to vote and that the government sometimes helps poor people.

“Since 1920,” he wrote, “the vast increase in welfare beneficiaries and the extension of the franchise to women — two constituencies that are notoriously tough for libertarians — have rendered the notion of ‘capitalist democracy’ into an oxymoron.” (He later clarified his comments, saying he didn’t want to disenfranchise anyone.

Now, it is far from certain Trump will be elected President, and it seems unlikely that a President Trump would nominate Thiel, who would face stiff resistance even from some Republicans in Congress (in part because of his libertarian views and sexual orientation).

But let’s not miss the big point here.

If Trump is elected President, and Republicans hold a narrow majority in the Senate, Republicans will get rid of the filibuster if necessary in order to get the Republicans’ choices for the Supreme Court on the Court—potentially solidifying a conservative bloc on the Supreme Court for the next generation.

And we can expect the same from Democrats: If Clinton is elected President and Democrats hold a narrow majority in the Senate, Democrats will get rid of the filibuster if necessary in order to get Democrats’ choices for the Supreme Court on the Court—potentially solidifying a liberal bloc on the Supreme Court for the next generation.

In short, as soon as either party needs the filibuster to get someone on the Court, they will.

And the stakes could not be higher. As I explained at TPM about a year ago:

The future composition of the Supreme Court is the most important civil rights cause of our time. It is more important than racial justice, marriage equality, voting rights, money in politics, abortion rights, gun rights, or managing climate change. It matters more because the ability to move forward in these other civil rights struggles depends first and foremost upon control of the Court. And control for the next generation is about to be up for grabs, likely in the next presidential election, a point many on the right but few on the left seem to have recognized.


“Poll: Nearly half of Americans say voter fraud occurs often”


Nearly half of Americans say that voter fraud occurs at least somewhat often according to a new Washington Post-ABC News poll, a viewpoint at odds with studies showing it rarely occurs in U.S. elections.

The poll also finds 63 percent of voters are confident that votes in this year’s presidential election will be counted accurately, down from about 7 in 10 in 2004.


And we know that Republicans have ginned up unsubstantiated reports of voter fraud for political purposes. It is noxious and undermines our democracy.



“GOP operatives discussed ginning up ‘voter fraud’ reports”

Milwaukee Journal-Sentinel:

Republican insiders discussed ginning up concerns over voter fraud in the days after then-Supreme Court Justice David Prosser narrowly defeated challenger JoAnne Kloppenburg in April 2011.

“Do we need to start messaging ‘widespread reports of election fraud’ so we are positively set up for the recount regardless of the final number? I obviously think we should,” wrote Steve Baas, a senior vice president with the Metropolitan Milwaukee Association of Commerce, to a group of conservative operatives on April 6, 2011, a day after the Prosser-Kloppenburg contest.

“Yes. Anything fishy should be highlighted,” wrote former Assembly Speaker Scott Jensen, a Republican. “Stories should be solicited by talk show hosts.”

Asked to clarify his email, Jensen said on Wednesday, “The British newspapers are world famous for printing illegally obtained information. I am disappointed that is now the standard at the Milwaukee Journal Sentinel.”

Rick Hasen, a national election law expert, said on his blog on Wednesday that the email exchange suggests that much of the talk about voter fraud is “all about manipulating Republican public opinion,” He added, “This cynical ‘messaging’ is sadly validating of what many of us have said.”


“Sowing Doubt Is Seen as Prime Danger in Hacking Voting System”

Must-read NYT:

Russian hackers would not be able to change the outcome of the United States presidential election, the nation’s most senior intelligence and law enforcement officials have assured Congress and the White House in recent weeks.

But disrupting it, they acknowledge, would be far easier — causing doubts in battleground states, prompting challenges to results and creating enough chaos to make Florida’s hanging chads seem like a quaint problem from the analog age. By some measures, in fact, the disruption has already begun.

And meddling around the edges of an election could sow doubts about the legitimacy of the results — especially in a year in which the Republican nominee, Donald J. Trump, has told his supporters that the only way he will lose is if the election is “rigged,” and while campaign officials for his Democratic opponent, Hillary Clinton, have held a series of meetings about preparing for the possibility that the vote will be hacked.

The White House has declined to name Russia publicly as the chief suspect in a series of recent hacks, and has worded its public warnings carefully. The greatest danger, Lisa O. Monaco, President Obama’s domestic security adviser, said on Wednesday, is from attempts to cause “concern or confusion” about the voting system.


“New Records Shed Light on Donald Trump’s $25,000 Gift to Florida Official”

Another A1-NYT on Trump-Bondi, with a timing detail which Trump supporters will surely highlight:

The Sentinel’s report, which was published on Sept. 13, 2013, paraphrased Ms. Meale’s response and took it a step further, saying that Ms. Bondi’s office would “determine whether Florida should join the multi-state case.”Four days later, a check for $25,000 from the Donald J. Trump Foundation landed in the Tampa office of a political action committee that had been formed to support Ms. Bondi’s 2014 re-election. In mid-October, her office announced that it would not be acting on the Trump University complaints.

The proximate timing of the Sentinel article and Mr. Trump’s donation, and suspicions of a quid pro quo, have driven a narrative that has dogged Mr. Trump and Ms. Bondi for three years. It has intensified during Mr. Trump’s presidential campaign, peaking this month with the filing of ethics complaints, calls for a federal investigation by editorial boards and Democrats in Congress, and a new investigation of Mr. Trump’s foundation by New York regulators.

But documents obtained this week by The New York Times, including a copy of Mr. Trump’s check, at least partly undercut that timeline. Although the check was received by Ms. Bondi’s committee four days after the Sentinel report, and was recorded as such in her financial disclosure filings, it was actually dated and signed by Mr. Trump four days before the article appeared.

The check’s date does not categorically demonstrate that Mr. Trump was not seeking to influence Ms. Bondi, a fellow Republican. Even as he has denied trying to do so in this instance, he has boasted brazenly and repeatedly during his presidential campaign that he has made copious campaign contributions over the past two decades, including to Hillary Clinton and other Democrats, in order to buy access and consideration for his business dealings.

Politicians in Florida, which Mr. Trump considers his second home, have been among his leading beneficiaries. An analysis of public records shows he has contributed at least $375,000 to state and federal candidates and political committees here since 1995, accounting for 19 percent of the roughly $2 million he has given to campaigns nationwide, other than his own.

Although not unprecedented, his $25,000 gift to And Justice for All, the committee supporting Ms. Bondi, is among his largest.

What is more, when Mr. Trump wrote that check, he still theoretically had reason to be concerned that Florida’s attorney general could become a player in the legal assault on Trump University.


“Missouri lawmakers loosen gun laws, back voter photo ID”


Missouri’s Republican-led Legislature used its supermajority Wednesday to significantly loosen the state’s gun laws and potentially tighten its voting requirements as lawmakers overrode numerous vetoes of Democratic Gov. Jay Nixon.

The sweeping guns legislation would allow most adults to carry concealed weapons without needing a permit while also expanding people’s right to defend themselves both in public and private places. The elections law change would require people to show a government-issued photo ID at the polls starting in 2017, if voters also approve a proposed constitutional amendment on the November ballot.

 Both measures passed with more than the required two-thirds majority in each chamber as Republicans shut off Democratic discussion and enacted the laws on largely party-line votes.

“Wisconsin: John Doe investigation documents leaked, show fundraising efforts, and early attempt to tarnish effort with voter fraud claims”

Recall Elections Blog:

However, Rick Hasen at the Election Law Blog notes one specific email, where “a Republican operative” suggests “messaging ‘widespread reports of election fraud’ so we are positively set up for the recount regardless of the final number.”
Longtime readers, if any, of this blog may remember that this early push on election fraud claims definitely happened in a very specific way:
Here is Scott Walker claiming that he needs over 53% of the vote because voter fraud is going to claim 1-2% of the vote.
Here’s RNC Chair Reince Priebus backing up the same voter fraud claim.
Here’s future state House Speaker Robin Vos claiming that the Republican’s loss in a Wisconsin Senate recall race was partly due to fraud.

“In newly released emails, critics see proof of political motive for GOP voter fraud claims”

Wisconsin State Journal:

They were dated to the early morning hours of April 6, 2011. At that time, the incumbent and GOP favorite in the Supreme Court race, then-Justice David Prosser, clung to a razor-thin election lead over the candidate favored by Democrats, Judge Joanne Kloppenburg.

Steve Baas, a lobbyist for the Metropolitan Milwaukee Association of Commerce and former Republican legislative staffer, floated an idea on the email thread:

“Do we need to start messaging ‘widespread reports of election fraud’ so we are positively set up for the recount regardless of the final number? I obviously think we should.”

Scott Jensen — the former GOP Assembly Speaker turned lobbyist for American Federation for Children, a private school voucher advocacy group — quickly responded:

“Yes. Anything fishy should be highlighted. Stories should be solicited by talk radio hosts.”

In another email, Jensen writes that Prosser “needs to be on talk radio in the morning saying he is confident he won and talk radio needs to scream the Dems are trying to steal the race.”

Prosser went on to win the election in a recount. He served five more years on the high court before stepping down in July.

In a Wednesday post to his “Election Law Blog,” Rick Hasen, an election law expert at UC-Irvine, wrote the emails show “all this talk of fraud is all about manipulating Republican public opinion.”

“This cynical “messaging” is sadly validating of what many of us have said,” Hasen wrote.


Will There Be an Investigation of the WI John Doe Leak?

From the same MJS article I earlier linked to:

“The public release of this John Doe evidence without court authorization is not merely a violation of the John Doe secrecy order; it is a crime under Wisconsin law,” Chisholm said. “As Special Prosecutor Fran Schmitz has done in the past when other secret materials have been publicly disclosed, we support any effort that may be undertaken to determine the source of these newest leaks.”

Such an investigation appears possible.

GOP Attorney General Brad Schimel “is currently reviewing the available options to address the serious legal questions raised by the leak and publication of these sealed documents,” Schimel spokesman Johnny Koremenos said in a statement.

State Rep. David Craig (R-Town of Vernon) said he wants to form a special legislative committee with subpoena power to look into how the investigation was conducted and the leak of documents. Craig, who is running for state Senate without opposition, helped lead the effort to end the ability of prosecutors to use John Doe investigations to investigate campaign finance matters.

This leak of John Doe documents comes just weeks before the U.S. Supreme Court is to meet in closed session on a petition from prosecutors to revive the investigation.


“GOP eases lead paint laws after $750,000 in donations”

Milwaukee Journal-Sentinel:

Gov. Scott Walker and the GOP-controlled Legislature approved a measure aimed at retroactively shielding paint makers from liability after a billionaire owner of a lead producer contributed $750,000 to a political group that provided crucial support to Walker and Republicans in recall elections, according to a report released Wednesday.

Citing leaked documents gathered during a now-shuttered investigation into the governor’s campaign, the Guardian U.S., an arm of the British newspaper, reported that Harold Simmons, owner of NL Industries, a producer of the lead formerly used in paint, made three donations totaling $750,000 to the Wisconsin Club for Growth between April 2011 and January 2012.

Simmons’ donations were made before and after Republicans approved two laws helpful to the industry — one in January 2011 and the other in June 2013. The 2013 measure was inserted in a budget bill in the middle of the night despite warnings about its constitutionality.

The documents confirm earlier reports that Walker solicited millions of dollars for Wisconsin Club for Growth, a group then run by R.J. Johnson, one of his top campaign advisers. The Guardian story says Walker was warned in an email about potential “red flags” with Simmons, who died in 2013, including a magazine story that described him as “Dallas’ most evil genius.”…

The Guardian story quotes a Walker email to Karl Rove, a former top aide to President George W. Bush who oversaw a major political action committee, in which the Republican governor credits Johnson and Wisconsin for Growth in the election of Gableman and Prosser. Both justices voted to shut down the John Doe investigation.

“RJ was the chief adviser to my campaign,” Walker wrote on May 4, 2011. “He put together the team to flip the Senate three times and the Assembly two times.

“He ran the effort that defeated the first incumbent Supreme Court Justice in decades back in 2008, and Club for Growth-Wisconsin was the key to retaining Justice Prosser.”

Since the recalls, Walker and Republicans in the state have sought to shield paint makers from liability in lawsuits involving lead paint, though federal courts have in turn blocked some of those actions from standing.


Big Deal: WI Republicans Ginned Up Voter Fraud Talk Ahead of Recall, worked with Talk Show Hosts, to Prepare Republican Base for Recounts

Check out this Republican operative suggesting “messaging ‘widespread reports of election fraud’ so we are positively set up for the recount regardless of the final number.” This comes from from the Guardian’s collection of leaked John Doe papers [in this Prosser file]. It shows that all this talk of fraud is all about manipulating Republican public opinion to believe that if Democrats won a close Supreme Court race, and the recall went to a recount ,that the election was stolen by Democratic voter fraud. This cynical “messaging” is sadly validating of what many of us have said. [UPDATE: This wasn’t at the time of the recall but right after the Prosser-Kloppenburg Supreme Court race which was very close and eventually went to a recount.]




Foley: The Sixth Circuit’s Distinction between Absentee and Provisional Ballots: Why?

The following is a guest post from Ned Foley:

The Sixth Circuit’s Distinction between Absentee and Provisional Ballots: Why?

One thing I don’t understand about the majority opinion in yesterday’s NEOCH decision is the distinction that the majority draws between absentee and provisional ballots for the purpose of applying Anderson-Burdick balancing to the invalidation of ballots for a voter’s clerical error in writing the voter’s birthdate or address on the envelope in which the ballot (absentee or provisional) is submitted.

The majority finds an Equal Protection violation under Anderson-Burdick for the invalidation of ABSENTEE ballots for this type of clerical error, but rejects the equivalent Equal Protection claim with respect to the invalidation of PROVISIONAL ballots for the identical type of clerical error.  This disparate disenfranchisement of comparably situated voters (by the Sixth Circuit majority) itself invites Equal Protection inquiry under a Bush v. Gore type of analysis.

What does the Sixth Circuit majority say to justify this distinction?  Not much; it doesn’t really address the comparison of absentee and provisional ballots directly, but rather just analyzes each separately in turn under its application of the Anderson-Burdick balancing test.

The majority seems to think that process of verifying provisional ballots, to make sure that the provisional voter is registered and authentic (ID matches, so that the person casting the ballot is really the person entitled to cast it) justifies disqualifying a provisional ballot if the voter accidently writes the wrong information for the voter’s birthdate or address—for example, accidently writing the current date rather than one’s birthdate.  The relevant sentence of the majority’s opinion, on page 22, is this:  “Ohio’s important interests in provisional-voter registration and identification eclipse the small burden of accurately completing the two fields—a burden that actually impacts just a few hundred voters each election, an impact wholly in their own control.”

But then the very next sentence is: “However, we agree with the district court that Ohio has made no such justification for mandating technical precision in the address and birthdate fields of the absentee-ballot identification envelope.”  Ohio’s defense was the same in both contexts: the need to make sure that the person submitting the absentee ballot was in fact registered and authentically the person in whose name the ballot is being cast.  But here the majority rejects the defense as theoretical and speculative, not grounded in actual evidence of a problem.  As the majority puts it, “some level of specificity is necessary to convert that abstraction into a definite interest for a court to weigh.”  (Id.)  But why wasn’t that point equally applicable to the same defense regarding provisional ballots?

It is as if the majority opinion believes that provisional ballots are inherently more suspicious than absentee ballots, enough so that an innocent clerical mistake is enough grounds to toss the ballot out, thereby disenfranchising the voter.  But this position makes no sense to me.  The constitutional claim in the case, as the Sixth Circuit majority itself defines it, concerns the invalidation of the ballot solely because of the clerical error regarding the birthdate—the mistaken writing of the current date, for example (as I discussed in a previous post on this case before it reached the Sixth Circuit).  But if this is the sole reason for rejecting the provisional ballot, then the election officials already know that the provisional voter’s registration status has been confirmed, and that the provisional voter’s required ID number (driver’s license or last 4 digits of SSN) has dispelled doubt about the voter’s authenticity.  In this situation, there is no need to disqualify the ballot just because of the inconsequential clerical error regarding the birthdate.  As the majority acknowledges elsewhere regarding ABSENTEE ballots, the state’s justification for “requiring mail-in voters to complete the address and birthdate fields” as information that potentially aids election officials in the verification process is not an adequate justification “to reject ballots containing technical errors” when those errors do not defeat the ability of officials to verify the ballot in question (slip op. at 24; emphasis in original).  The very same point applies equally to provisional ballots, but the Sixth Circuit majority just seemed to miss it in that context.

There is some language in the Sixth Circuit’s majority opinion that suggests that it might make a difference to the Anderson-Burdick balancing that numerically fewer provisional ballots are rejected each election because of these clerical errors than absentee ballots 620 provisional ballots, compared to 1712 absentee ballots, in 2014 & 2015 (slip op. at 21).  But that numerical difference would seem irrelevant under the way that the Crawford “plurality” — the Justice Stevens opinion — understood Anderson-Burdick balancing (in contrast to Justice Scalia’s alternative approach in his Crawford concurrence), and the Sixth Circuit majority acknowledges the Stevens opinion in Crawford to be “controlling”.  In this regard, the Sixth Circuit majority refers to the Anderson-Burdick claims before it as “facial challenge[s]” (slip op. at  21), but I had understood the Anderson-Burdick claims in this case – in contrast to Crawford itself – to be as-applied challenges on behalf of the subset of voters represented by the plaintiffs (the homeless and other specifically disadvantaged groups).

This leads me to wonder whether, even after yesterday’s decision, there is still the possibility of a valid AS-APPLIED challenge on behalf of any provisional voter whose ballot is rejected solely because of a clerical error regarding a birthdate or address—and that the upshot of the decision is that the equivalent rule regarding absentee ballots is facially invalid, and thus absentee voters do not need to seek an as-applied remedy for this kind of disenfranchisement, whereas provisional voters still do.  Even so, I still don’t understand the basis for the Sixth Circuit majority’s distinguishing between absentee and provisional voters, even for purposes of the kind of claims that the majority characterized as equivalent “facial challenge[s].”  But at least that would not rule out the possibility of protecting provisional voters from disenfranchisement solely because of a clerical error that the Sixth Circuit majority itself defines as inconsequential to verifying the voter’s eligibility and identity.

I welcome hearing from others about their thoughts on how best to understand the Sixth Circuit’s distinction between provisional and absentee ballots with regard to rejecting them for clerical errors.


“McDonnell and Anti-Corruption’s Last Stand”

Jacob Eisler has posted this draft on SSRN (forthcoming, UC Davis Law Review).  Here is the abstract:

In McDonnell v. United States, the Supreme Court constrained the reach of federal anti-corruption law, declared the inevitability and even desirability of representatives aggrandizing favored constituents, and asserted patronage to be a hallmark of democracy. The unanimous decision is the latest and clearest indication that the Court will frustrate regulations that require officials to discharge their roles with disinterested neutrality.

This article demonstrates the impact of the Court’s minimalist view of integrity through political philosophy and game theory. Given the Court’s hostility to regulatory prohibition of self-interested political behavior, the final bulwark of public-minded governance is the electorate, which must use the ballot box to reject corrupt representatives. Additionally, the Court’s position erects significant obstacles for reform of campaign finance and political institutions. The article concludes that implementing civic anti-corruption requires either jurisprudential innovation or novel approaches to enforcement.

This article thereby integrates the history of modern anti-corruption law with the latest leading decision on the topic, weaves together the Court’s blackletter doctrine with its substantive politics, describes the impact of the law on democratic governance, and points the way forward for both scholarship and policy.


New Lawsuit Challenges GA Voter Verification System


  1. This action seeks declaratory and injunctive relief to stop an administrative policy employed by the Georgia Secretary of State that creates an illegal precondition to voter registration and, if not enjoined, will unlawfully disenfranchise tens of thousands of Georgia voting-eligible citizens, the vast majority of whom are minorities, in the November 2016 election and thereafter.
  2. Under the Georgia Secretary of State’s current administrative policy, voter registration applications submitted by eligible voters are not added to the list of persons eligible to vote if certain identifying information does not match exactly with existing Georgia Department of Driver Services or Social Security Administration records. Voter registration applicants whose information does not match those records are not allowed to cast a valid ballot unless they overcome a series of burdensome bureaucratic hurdles that deprive them of their fundamental right to vote, unless they happen to fall within a couple of narrow and arbitrary exceptions. Those who cannot overcome these hurdles are denied the right to vote.
  3.  Insistence on digit-by-digit and character-by-character exactitude when comparing information from one database with information in a different database is a notoriously unreliable method of verification in the elections context. The “match” process is invariably plagued with errors, especially when the match criteria demand an exact match across numerous data fields. Mismatches between databases can result from innocuous mistakes such as omitting a hyphen or initial, and frequently result from no fault of the voter whatsoever. Examples include data entry errors, typos, misreading of imperfect 3 handwriting by elections officials and computer glitches within the State’s registration system. None of these common errors relate to a voter’s eligibility to vote, yet may routinely result in disenfranchisement under the Secretary’s policy.
  4.  There are many ways in which the records of eligible voters who submit truthful and accurate registration applications will fail to “match.” For example, voters who register in their married names will not match if their driver’s license or Social Security records are in their maiden names. Voters with compound last names will not be deemed a match if one database assigns part of the last name to the middle name position, but the other does not. Voters with symbols in their name, such as accent marks, will not match if one database recognizes those symbols and another does not. Finally, the voter’s records will not be deemed a match if the person doing the data entry omits or transposes any digits or characters when entering information from a voter registration

More in the press release.