From the joint intelligence report at page 2:
We assess the influence campaign aspired to help President-elect Trump’s chances of victory when possible by discrediting Secretary Clinton and publicly contrasting her unfavorably to the President-elect. When it appeared to Moscow that Secretary Clinton was likely to win the presidency the Russian influence campaign focused more on undercutting Secretary Clinton’s legitimacy and crippling her presidency from its start, including by impugning the fairness of the election.
Before the election, Russian diplomats had publicly denounced the US electoral process and were prepared to publicly call into question the validity of the results. ProKremlin bloggers had prepared a Twitter campaign, #DemocracyRIP, on election night in anticipation of Secretary Clinton’s victory, judging from their social media activity.
Trump also said in statement that attempts to hack RNC were unsuccessful thanks to “strong hacking defenses.”
He also refers to the DNC as the “Democrat National Committee.”
Read Mike Stern at Point of Order.
See here, beginning at page 39. Introduction:
The integrity of our democracy depends on ensuring that every eligible voter can meaningfully participate in the electoral process. Voting forms the bedrock of our democracy. The division works to ensure that every eligible voter enjoys the full range of voting rights protected by federal law. Even with the severe setback of the Supreme Court’s 2013 decision in Shelby County v. Holder, the division has continued to use every tool at its disposal, including the Voting Rights Act, to protect voters from discrimination and provide the opportunities federal law guarantees.
One thing not highlighted in the report: the very small number of VRA Section 2 suits brought by DOJ during this period.
This post has been updated
Franita Tolson has been elected as this year’s chair of the Election Law section of the AALS. Ciara Torres-Spelliscy has been elected as next year’s chair.
The League of Women Voters has offered some interesting suggestions for the remedial approach the federal court should take in this case. The brief suggests the legislature should be given the first shot, but with the use of institutional structures that would cabin in excessive partisanship. The brief asserts it is suggesting remedial approaches that respect the values of political accountability without permitting excessive partisanship to control the outcome.
Here is the key paragraph:
In the Wisconsin context, several options are available for drafting a new map in such a way. First, the legislature could delegate the responsibility for drafting a new map to defendants themselves, the six bipartisan members of Wisconsin’s bipartisan Elections Commission. Second, if there is concern that an even-numbered membership might reduce the chances of producing a mutually acceptable map, the legislature could follow the model successfully employed in several states by instructing the Commissioners, for this purpose only, to jointly designate a nonpartisan seventh member to serve as chair. Third, the legislature could direct Wisconsin’s Legislative Reference Bureau, an existing nonpartisan legislative service agency that drafts all legislation, to develop a new map. Finally, the legislature, following another model successfully employed in many states, could create a new five-member ad hoc committee consisting of an equal number of members designated by the minority and minority leaders of the Senate and Assembly, with those members jointly designating a nonpartisan additional community member to serve as chair.
The full brief is here: LWV Amicus Brief Whitford v Gill
Adam Gitlin and Wendy Weiser with a new Brennan Center report in advance of the Sen. Sessions confirmation hearings for AG.
Paul Jossey in the National Review:
The Internet is an incredible human achievement. It has done more to ensure freedom and human rights than any government agency ever could. But such freedom is insecure when would-be censors exist either inside or outside government. We can guard against them by ensuring that government policy and technological processes preserve the right to speak, offend, ridicule, hate, or lie without sanction.
Congress should codify Internet freedom — as in many important respects it already did when it passed the Communications Decency Act in 1996 — by amending the FEC’s enabling statute. Further rulemaking on the scope of the Internet exemption granted by the FEC would reduce the power of recalcitrant agencies to ignore it.
But day-to-day operational control of the group, which will be organized as a 501(c)4 nonprofit, is expected to lie with Parscale, who was given authority to take charge by Jared Kushner, Trump’s influential son-in-law. Inside Trump’s orbit, there has been a tug-of-war for weeks over who would control this outside entity — and with it the potential to tap into millions of dollars from both small and large donors….
The group is modeled after the nonprofit that backers of President Obama created after the 2008 campaign, a concept that was pushed heavily by Kellyanne Conway, Trump’s former campaign manager who is joining the White House as counselor to the president. Conway had initially been expected to take an official role at the outside group; her decision to forgo that position was one of the matters that top Trump officials aimed to address this week.
See my Dec. 6 post, When President Trump Forms a Non-Disclosing 501c4 to Support His Agenda, Say “Thanks Obama”
The Arizona Center for Investigative Reporting reports.
Text Order DENYING  Motion for Entry of Judgment under Rule 54(b) entered by Judge Xavier Rodriguez. This case involves a voluminous record. As movants acknowledge within this motion, “The litigants in this cause have had two trials totaling hundreds of hours of testimony and thousands of pages of exhibits and evidence. All pending issues have been briefed extensively.” In terms of the record alone, this case includes: over 1300 docket entries, including pleadings, lengthy post-trial briefs, reply briefs, supplemental briefs, proposed fact findings, proposed conclusions of law, argument summaries, and Powerpoint presentations from each of the parties in this case (the post-trial briefs and proposed fact findings and conclusions of law from just two of the many parties–Plaintiff Latino Redistricting Task Force and Intervenor United States–total over 1,000 pages); over 10,000 pages of transcripts (including 6,850 pages of transcripts from the trials in this case, not including the interim plan proceedings or any other hearings, thirteen agreed lay witness depositions entered into evidence totaling almost 1,800 pages, and twelve agreed expert witness depositions entered into evidence totaling almost 1,400 pages); approximately 3,000 exhibits, many of which are hundreds of pages long and include numerous lengthy reports, supplemental reports, and rebuttal reports from the twenty-one expert witnesses in this case; as well as numerous disputed proposed deposition excerpts and offers of proof. The relevant case law contains too many pages to count. The Court continues to diligently work through this voluminous record and the complex legal questions presented in this case and will issue an opinion as soon as possible.
My earlier coverage is here.
Ross Ramsey for the Texas Tribune.
Yesterday, as this blog noted, Governor Cooper filed his brief in his effort to block the last-minute changes the North Carolina legislature made to abolish the existing state board of elections and replace it with a newly configured one.
The legal theory on which the Governor’s challenge is based is that this change violates North Carolina constitutional provisions regarding the State’s separation of powers. Quoting a recent North Carolina Supreme Court decision, the core of the Governor’s argument is that the new appointments process for the Board interferes with the Governor’s powers to execute the laws: “The separation of powers clause plainly and clearly does not allow the General Assembly to take this much control over the execution of the laws from the Governor and lodge it with itself.”
I wanted to flag the basis for the legal challenge because commentators frequently rush to conclude that the most likely and most effective way to challenge changes to laws that affect the voting process is to invoke the federal Voting Rights Act or federal constitutional provisions. But as this brief shows, the lawyers who litigate these cases have a greater range of legal tools available, and not infrequently conclude there are more effective ways to attempt to challenge certain types of changes to the electoral process. Of course, whether the Governor will ultimately prevail here remains to be seen.
Reid Wilson for The Hill:
After consolidating power in Washington, D.C., and state capitals under President-elect Donald Trump, Republicans are moving to prevent large cities dominated by Democrats from enacting sweeping liberal agendas.
Republican state legislatures are planning so-called preemption laws, which prevent cities and counties from passing new measures governing everything from taxes to environmental regulations and social issues.
Andrew Gelman for Slate.
Pippa Norris of the EIP responds.
And that means a lawsuit too, no doubt.
Next stage of neat project to make the PRA actually readable and understandable for non-lawyers.
Short and sweet (not “otiose”) opinion.
Gerry Hebert, Joe Rich, and Bill Yeomans with a WaPo oped:
In the questionnaire he filed recently with the Senate Judiciary Committee, Sessions (R-Ala.) listed four civil rights cases among the 10 most significant that he litigated “personally” as the U.S. attorney for Alabama during the 1980s. Three involved voting rights, while the fourth was a school desegregation case. Following criticism for exaggerating his role, he then claimed that he provided “assistance and guidance” on these cases.
We worked in the Justice Department’s Civil Rights Division, which brought those lawsuits; we handled three of the four ourselves. We can state categorically that Sessions had no substantive involvement in any of them. He did what any U.S. attorney would have had to do: He signed his name on the complaint, and we added his name on any motions or briefs. That’s it.
Floyd has consistently been an opponent of campaign finance limits, but he has been more open to arguing for the constitutionality of campaign disclosure laws. (In the letter below, he is representing the views of a client, but my sense is he would not write this letter if he disagreed with these arguments.)
Here is a letter he wrote to the court defending a recent controversial NY campaign disclosure law:
What remains to be decided is whether the law, as adopted, is consistent with the First Amendment.
In this respect, both of the sections of law at issue in this case were designed to assure that the public has more information about the identity of those individuals and entities that fund speech relating to elections and other public policy issues. Section 172-e addresses a specific issue of nondisclosure brought about by a loophole in the law that has been exploited by several not-for profit groups. Under Article I-A of the Legislative Law (“the Lobbying Act”), sections 1-h and 1-j, organizations subject to Section 501(c)(4) of the Internal Revenue Code that engage in lobbying either on their own behalf or for clients are required to disclose their “source of funding” to the Joint Commission on Public Ethics (“JCOPE”). However, under the law as it existed prior to the enactment of Section 172-e, Section 501(c)(3) organizations were exempt from such disclosure requirements. The result has been that organizations such as Citizens Union that have both a 501(c)(3) entity and a 501(c)(4) one can transfer moneys received from the former to the latter, thus avoiding any disclosure obligation. Indeed, for some such organizations, if one tries to donate to the 501(c)(4), one is directed to the donations page of the affiliated 501(c)(3).
Far from being overbroad, Section 172-e is extremely limited in its scope. It imposes new disclosure requirements only when Section 501(c)(3) entities provide “in kind donations” valued at $2,500 to a 501(c)(4) entity and only requires entities subject to Section 501(c)(3) to disclose larger donations. It also provides that if any such disclosure “may cause harm, threats, harassment, or reprisals to the source of the donation or to individuals or property affiliated with the source of the donation” the Attorney General or his or her designee may determine not to require the disclosure, a decision subject to appeal to an independent “judicial hearing officer” who is “not affiliated with oremployed by the department of law.”
As for Section 172-f, it was intended to shed sunlight on dark money in politics by requiring Section 501(c)(4) entities that spend a significant amount of money (over $10,000) on issue advocacy, to disclose their identities and the identities of their large donors. Section 501(c)(4) entities that engage in lobbying are already required to register with JCOPE and to disclose their donors; the addition of entities that engage in issue advocacy is similarly constitutional. The law is narrowly tailored, only applying to Section 504(c)(4) entities and only when they spend and receive over a high dollar amount on a specific kind of public political advocacy. This is designed to promote transparency in the political process and to combat the role of dark money in politics. It contains, as well, the same protection for individuals or entities that assert that they may be harmed or harassed as a result of the newly required public disclosure as set forth above.
(h/t Jacob Gershman)
Super lawyer Paul Smith is giving up his partnership at Jenner and Block to become vice president of litigation and strategy at the Campaign Legal Center. From the release:
Mr. Smith, who has extensive experience in voting rights and redistricting, will also work side-by-side with long-time colleague and friend, Gerry Hebert, director of CLC’s voting rights and redistricting program. When CLC’s landmark partisan gerrymandering case, Whitford v. Gill, reaches the U.S. Supreme Court next term, as seems almost certain, Mr. Smith will present the oral argument.
Prior to joining CLC, Mr. Smith most recently served as a partner at the law firm Jenner & Block. In addition to his role at CLC, Mr. Smith will teach as a Distinguished Visitor from Practice at Georgetown University Law Center.
While best known for his gay rights victory [in Lawrence v. Texas], Smith has also argued before the high court in numerous redistricting cases and in First Amendment disputes as well. He has argued in 19 cases before the Supreme Court. While at Jenner, he chaired the firm’s appellate and Supreme Court practice and was co-chair of the media and First Amendment, and election law and redistricting practices. Smith had worked side-by-side at Jenner with Donald Verrilli Jr. until Verrilli went to the Obama Justice Department in 2009. Last year, Verrilli left his position as solicitor general to open a Washington office for Munger, Tolles and Olson.
What a coup for CLC!
Asked by Maddow whether he, too, would seek to keep the vacant seat open rather than confirm a nominee outside the mainstream, Schumer replied: “Absolutely.”
Suggesting that could be any nominee, he said: “It’s hard for me to imagine a nominee that Donald Trump would choose that would get Republican support that we [Democrats] could support.”
There’s little doubt that if Democrats filibuster a Trump nominee who emerges from the hearings with broad Republican support, Republicans will kill the filibuster for SCOTUS nominees (as Democrats killed it for other nominees).
The constitutionality of such requirements is uncertain. The Supreme Court in US Term Limits v. Thornton and Cook v. Gralike prevented states from adding qualifications for congressional candidates through ballot access requirements. If those cases applied here, it would be tough to argue that laws requiring presidential candidates to produce tax returns are constitutional as they would be adding to qualifications. However, those cases did not involve presidential elections, and perhaps state legislatures have much broader power under Article II. I think it is an open question.