“Judge’s ruling invalidates FEC regulation allowing anonymous donations to ‘dark money’ groups”

Big ruling while I was gone flagged here by Politico:

A U.S. District Court judge on Friday issued a ruling invalidating a Federal Election Commission regulation that has allowed donors to so-called dark-money groups to remain anonymous, the latest development in a years-long legal battle that could have major implications for campaign finance.

Judge Beryl A. Howell ruled the FEC’s current regulation of such groups, including 501(c) 4 non-profits, fails to uphold the standard Congress intended when it required the disclosure of politically related spending.

“The challenged regulation facilitates such financial ‘routing,’ blatantly undercuts the congressional goal of fully disclosing the sources of money flowing into federal political campaigns, and thereby suppresses the benefits intended to accrue from disclosure … ,” wrote Howell, an Obama appointee to the D.C district court. The decision is likely to be appealed….

The FEC now has 45 days to issue interim regulations that uphold the broader disclosure standards and 30 days to reconsider its original decision to dismiss a complaint about the Crossroads GPS’ spending in the Ohio race.

The FEC could appeal the decision, but an appeal would require a unanimous vote from all of the remaining commissioners, since two seats remain vacant. Crossroads could also file an appeal.

Even if the FEC does not appeal, I believe Crossroads GPS could bring an appeal here.


“Sitting Rep’s Campaign Collected Dead Man’s Signature On Challenger’s Behalf”


A Virginia judge appointed a special prosecutor Tuesday to look into a case of potential forgery and other election law violations after multiple suspicious signatures were found on a petition to get an independent congressional candidate on the ballot, the Richmond Times-Dispatch reported.

But there’s a big twist: The signatures for that independent candidate, Shaun Brown, were collected by paid campaign staffers for the incumbent Republican candidate in the race, Rep. Scott Taylor (R-VA).

Taylor beat Brown, who was then running as a Democrat, in the 2016 congressional election. Brown was subsequently indicted for fraud, a totally separate storylate last year. She announced her independent candidacy in March of this year.

What has emerged, potentially, is an effort to use fraudulent signatures to add an independent candidate to the ballot, in order to divert votes away from a legitimate Democratic challenger.


Top Recent Downloads in Election Law on SSRN


Rank Paper Downloads

Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security

University of Texas School of Law and University of Maryland Francis King Carey School of Law

Campaigns, Inc.

University of Wisconsin Law School

Presidential Elections: National Popular Vote, Elector Unit Rule Voting and Related Issues

Fried, Frank, Harris, Shriver & Jacobson LLP

The Democracy Ratchet

Pepperdine University – School of Law

Dark Parties: Citizens United, Independent-Expenditure Networks and the Evolution of Political Parties

University of California, San Diego (UCSD) – Department of Political Science

Two Problems of Fiduciary Governance

University of Houston Law Center

Is Groton the Next Evenwel?

Vanderbilt University – Law School

Prophylactic Redistricting? Congress’s Section 5 Power and the New Equal Protection Right to Vote

Florida State University – College of Law

Who Votes Without Identification? Using Affidavits from Michigan to Learn About the Potential Impact of Strict Photo Voter Identification Laws

University of Michigan at Ann Arbor, University of Pennsylvania and Harvard University – Department of Government

“Brennan Center Sues Justice Department for Refusing to Disclose Documents Related to Controversial Voting Letter”

Release via email:

The Brennan Center for Justice at NYU School of Law is suing the Justice Department today for refusing to turn over documents related to a controversial letter DOJ sent last year, which sought detailed information about how states maintain their voter rolls. Voting rights groups are concerned that it could be a prelude to pressuring states to engage in aggressive voter purges — the often-flawed process of deleting names from voter registration lists.

“The public has a right to know why the Justice Department sent this letter, and what information it received from states in response,” said Jonathan Brater, counsel in the Brennan Center’s Democracy Program. “The Justice Department should be fighting to protect the voting rights of all Americans. We are concerned, though, that this letter may be part of a broader effort to undermine those rights, and we are going to court to find out.”

Non-partisan ethics watchdog American Oversight is representing the Brennan Center in the lawsuit.

DOJ sent the letter in July 2017, requesting that election officials in 44 states share details about how they are complying with federal laws that govern voter list maintenance. In it, DOJ claimed the inquiry was related to “nationwide enforcement efforts.” The Brennan Center filed a Freedom of Information Act request shortly afterward, requesting communication and documents related to both the creation of the letter and any responses DOJ received from states. Earlier this year, the DOJ largely denied the request, producing some partially-redacted pages while at the same time acknowledging that additional responsive documents exist.

“On its own, this letter would be troubling, but taken in the context of President Trump’s discredited ‘voter fraud’ commission and the move to include a citizenship question in the census, it looks like one piece of a broader attack on voting rights,” said Austin Evers, executive director of American Oversight. “With just months until Americans head to the polls again for the November midterms, we need to get to the bottom of how this letter was written and why it was sent.”

DOJ’s inadequate response comes as a new Brennan Center report finds that voter purges are on the rise. Between the federal elections of 2014 and 2016, almost 4 million more names were purged from the rolls than between 2006 and 2008.

The uptick is particularly noticeable in jurisdictions that previously had to “pre-clear” changes to their election procedures with federal officials because of a history of racial discrimination. The Supreme Court’s 2013 decision in Shelby County v. Holder ended that federal oversight. Had purge rates continued in these jurisdictions at the same pace as rates in jurisdictions not subject to preclearance at that time, 2 million fewer voters would have been deleted from voter rolls between the elections of 2012 and 2016.


A “New Gig” and an Old One for the Indispensable Doug Chapin

Doug announces:

Seven years ago, I joined the University of Minnesota to help build and launch the Humphrey School’s election work – and over that time, we’ve built a master’s- and undergraduate-level Certificate in Election Administration program that’s reaching students, election officials and other professionals nationwide. Throughout that time, I’ve written approximately eleventy billion words on this blog and on Twitter highlighting election administration issues and doing my part to promote the work of #electiongeeks across America.

The good news is that little of that is going to change; however, in a couple of weeks I’ll be starting a new chapter of my career.

On August 20, I will be joining Fors Marsh Group in Northern Virginia as their Director of Election Research. FMG is home to some of the smartest people I’ve ever met, and they’re already doing incredible work in the election space with clients like the Federal Voting Assistance Program, the Election Assistance Commission and the Council on State Governments. Now more than ever, quality research and data on election administration is crucial not only to improving the voter experience but also to hardening our democracy against outside threats – and FMG and its team of professionals is knee-deep in the work. My role will be to manage that portfolio as well as to look for opportunities for new projects in the election space. It’s an incredible opportunity and I can’t wait to get started.

As I said, though, the educational work at Minnesota will continue; I’ll still be teaching as an adjunct faculty member – and this blog will live on as one way for me to stay on top of (and share) ideas and issues in the elections field. I also expect to stay active on Twitter!

Doug is a gem in the election law community. Full of knowledge, scrupulously fair, Minnesota nice, and an island of calm rationality when everyone else’s heads are exploding. I learn so much from Doug’s work and his personal example. Good luck with the new endeavor, Doug!


“Kris Kobach used flawed research to defend Trump’s voter fraud panel, experts say”


One of the foremost proponents of stricter voter identification laws, Kobach, who is running in the primary Tuesday for the Republican nomination for the state’s governorship, has been undeterred since a federal judge struck down a restrictive voting law for which he had advocated in the state.

And in a statement sent to The Washington Post, Kobach accused Dunlap of being “willfully blind to the voter fraud in front of his nose,” pointing to studies from two conservative groups about the supposed voter fraud about which he has been so vocal: a database from the Heritage Foundation that found 983 convictions in state, local and federal elections dating back decades; and a study from the Government Accountability Institute, a nonprofit founded by Stephen K. Bannon and another Breitbart editor, that purported to find 8,400 instances of double voting in the 2016 election…

Kobach’s response was included in the reports of outlets such as CNN, the Associated Pressand HuffPost. But election experts interviewed by The Post said that the two studies made for a flawed portrait of the issue of voter fraud. Examining them provides a window into the ways in which statistics are massaged and studies are selectively deployed in the push to address the supposed mass scourge of voter fraud with stricter voter identification laws. Though a handful of people vote illegally, either intentionally or unintentionally, every year, election experts say that there is no evidence that voter fraud is a widespread issue of any statistical significance.


Is Kobach’s Controversial CrossCheck Program Dying?

Steven Rosenfeld:

That overall tally means that 17 out of the 28 states that were in Crosscheck as of early 2017 have backed away, at least for now. That list of states, that, under a legal memo, agree to share some of their voter data for analytics overseen by the Kansas Secretary of State, comes from a Supreme Court legal brief filed by ex-Bush administration officials known for overly policing the process. They supported a new purge process in Ohio.

But there’s more going on than a mass exodus or distancing from Crosscheck, as Illinois’ reference to “security issues” alludes. Last fall, Indivisible Chicago, a Democratic activist group, posted documents online showing Crosscheck security lapses: emails with logins and passwords; statements that it did not change passwords; and observing that it didn’t encrypt voter data. Since then, some of the attorneys defending Crosscheck in court have acknowledged that the Department of Homeland Security sees Crosscheck as a cyber-security risk. That development led more states to suspend its interactions with it.


“Election Commission Documents Cast Doubt on Trump’s Claims of Voter Fraud”


Today, thousands of commission documents were released that show aspects of the body’s inner workings. As critics have suggested, the records — a mix of memos, internal emails and reports — make clear the commission’s work was driven by a small number of members who were convinced voter fraud was widespread, and that other members were often excluded from critical decisions about the commission’s aims and tactics….

On Nov. 18, 2017, Andrew Kossack — the executive director of the commission — circulated a draft “Staff Report” on the commission’s work. The report is a summary of the commission’s efforts, which Kossack appears to have been compiling beginning in August. The draft report included a prewritten section called “Evidence of Election Integrity and Voter Fraud Issues.” The section, with few exceptions, wound up almost entirely blank….

The documents released today also suggest that the commission had intended to ask states for far more information than has been publicly reported.

ProPublica first reported last October that Hans von Spakovsky and J. Christian Adams — two individuals who are closely associated with advocacy for strict laws to prevent voter fraud — provided feedback on the request for state voter rolls behind the scenes before their formal appointment to the commission. The documents now show their specific suggestions.

In addition to the voter roll data, von Spakovsky and Adams jointly recommended the commission ask for a long list of other data from states. Those on the email chain jointly agreed that the first request should be simple, and that additional data could be requested later.

It appears the commission quickly made plans to request some of the additional data the pair had requested, namely jury questionnaires. The documents show that in late June, at the same time the original letter was sent, Kobach and members of the Office of the Vice President had drafted and finalized a letter to send to federal clerks’ offices requesting information on “all individuals determined to be ineligible or who were otherwise excused from federal jury duty” because they had died, moved out of the jurisdiction, had a felony conviction, or were not U.S. citizens. They specifically requested the names of the individuals and their addresses, and the reason they were excused from jury duty, and “other identifying information associated with each individual.”



Group Challenging Constitutionality of Size of California Legislature Seeks Writ of Mandamus from Supreme Court to Convene 3-Judge-Court

You can find the petition at this link.

The petition alleges that the district court was going to convene a three-judge court until the Chief Judge of the 9th Circuit told the judge not to do so:

Petitioners claim no misconduct on the part of the district judge, the Chief Circuit Judge or any of the “attorneys” (presumably circuit staff attorneys) with whom the district judge had a “discussion” on this topic. Tr. of 6/14/2108 hearing at 29, Appendix at C-28a. Nevertheless, the Chief Circuit Judge did not have the benefit of briefing on this issue, and it is therefore a denial of due process for him to issue authoritative guidance to the district judge about how she must exercise her authority under 28 U.S.C. §2284(b)(1). Nor does the Chief Circuit Judge, acting in his administrative capacity under 28 U.S.C. §2284(b)(1), have authority to speak on this issue. Under the clear terms of the statute, his role is limited to “designat[ing] two other judges, at least one of whom shall be a circuit judge.” So whatever guidance or directive the Chief Circuit Judge gave to the district judge was ultra vires and injudicious.


“Wisconsin’s redistricting case draws new judge on panel as Barbara Crabb withdraws”

Milwaukee Journal-Sentinel:

Wisconsin’s redistricting case is headed back to a three-judge panel — but it will consist of a slightly different set of judges.

Barbara Crabb, a U.S. district judge for Wisconsin’s western district, on Thursday withdrew from the case without explanation. She will be replaced by U.S. District Judge James Peterson, a colleague in her district who was randomly assigned to the case.

The case centers on whether legislative maps that GOP lawmakers drew in 2011 are so beneficial to Republicans that they violate the voting rights of Democrats.

The U.S. Supreme Court in June determined the Democrats didn’t have legal standingto bring their lawsuit, but found they may be able to establish standing and continue the case. The justices returned it to the three-judge panel for further proceedings.

I have asked the reporter for clarification on whether this was really a random draw replacement. As I understand it, it is the chief judge who gets to pick the composition of the three-judge panel.

UPDATE: It was in fact a random draw, as the reporter, Patrick Marley, explains.


“Russian Threat ‘Is Real,’ Trump Officials Say, Vowing to Protect U.S. Elections”


Top national security officials vowed Thursday to defend American elections against what they called real threats from Russia only weeks after President Trump seemed to accept President Vladimir V. Putin’s denials of interference during a summit meeting in Finland.

After the meeting, Mr. Trump said he had not meant to endorse Mr. Putin’s denial of election meddling, but insisted that the culprit behind the intrusion“could be other people.” A few days later, he asserted that the idea of any meddling by Russia was “all a big hoax.”

But the men and women charged with detecting and defending against any threats to the American political process showed no such ambivalence. They bluntly said that Russia was behind a “pervasive” campaign to weaken America’s democracy and influence the 2018 election.

They also sought to reassure voters that federal, state and local governments were taking steps to guard against what Christopher A. Wray, the F.B.I. director, described as a “24-7 365-days-a-year” effort by Russia to sow division as Americans head to the polls in the fall.


ELB Podcast, Season 2: Episode 1. Dale Ho: From the Trenches of the Voting Wars

After a long hiatus, the ELB Podcast is back in time for the midterm election season with a great first guest!

What is the state of voting rights in America? What did the ACLU’s lawsuit against Kris Kobach over the state of Kansas’s “show us your papers” citizenship voting law teach us about the extent of the voter fraud problem? What’s at stake in the litigation over the citizenship question which may appear on the 2020 census?

On Season 2, Episode 1 of the ELB Podcast, we talk with Dale Ho, Director of the ACLU’s Voting Rights Project, who supervises the ACLU’s voting rights litigation and advocacy work nationwide.

You can listen to the ELB Podcast Season 2, Episode 1 on Soundcloud or subscribe at iTunes.


“Donation from prominent L.A. politician roils USC, which referred case to federal prosecutors”

Quite a story in the LAT:

When state Assemblyman Sebastian Ridley-Thomas resigned suddenly in December, it marked an abrupt halt to a promising political career.

The son of powerful Los Angeles County Supervisor Mark Ridley-Thomas had enjoyed the backing of his father’s donors and the Democratic Party establishment.

Ridley-Thomas, 30, said at the time that unspecified health problems left him no choice but to step down. He needed “an extended period of time to recuperate,” he wrote in a statement.

Within months, the younger Ridley-Thomas reemerged at the University of Southern California.

The university, which sits in his father’s district, hired him as a professor of social work and public policy. USC also gave Ridley-Thomas, who lacked a graduate degree, a scholarship to pursue a master’s program in social work, according to sources familiar with the matter.

The unusual arrangement has come under scrutiny in recent weeks as the scandal-plagued university attempts to adopt more transparency in its affairs. Administrators launched an investigation and Sebastian Ridley-Thomas was fired last month, said the sources, who spoke on the condition of anonymity because they were not authorized to comment publicly.

After the internal probe, USC approached the U.S. Attorney’s office in Los Angeles. The university told federal prosecutors it had concerns about a recent $100,000 donation from a campaign fund controlled by Mark Ridley-Thomas.

The gift to USC’s Suzanne Dworak-Peck School of Social Work ended up in the account of a nonprofit group outside the university run by Sebastian Ridley-Thomas, according to sources and public records.


“Arrested, Jailed and Charged With a Felony. For Voting.”


Keith Sellars and his daughters were driving home from dinner at a Mexican restaurant last December when he was pulled over for running a red light. The officer ran a background check and came back with bad news for Mr. Sellars. There was a warrant out for his arrest.

As his girls cried in the back seat, Mr. Sellars was handcuffed and taken to jail.

His crime: Illegal voting.

“I didn’t know,” said Mr. Sellars, who spent the night in jail before his family paid his $2,500 bond. “I thought I was practicing my right.”

Mr. Sellars, 44, is one of a dozen people in Alamance County in North Carolina who have been charged with voting illegally in the 2016 presidential election. All were on probation or parole for felony convictions, which in North Carolina and many other states disqualifies a person from voting. If convicted, they face up to two years in prison.

While election experts and public officials across the country say there is no evidence of widespread voter fraud, local prosecutors and state officials in North Carolina, Texas, Kansas, Idaho and other states have sought to send a tough message by filing criminal charges against the tiny fraction of people who are caught voting illegally.


“Facebook Grapples With a Maturing Adversary in Election Meddling”


They covered their tracks, using software to camouflage their internet traffic. They created Facebook pages for anti-Trump culture warriors, Hispanic activists and fans of alternative medicine. And they organized protests in coordination with real-world political groups.

The people behind an influence campaign ahead of this year’s elections, which Facebook disclosed on Tuesday, copied enough of the tactics used by Russians in the 2016 races to raise suspicion that Russia was at it again. But the new efforts also revealed signs of a maturing adversary, adapting and evolving to better disguise itself, while also better imitating real activists.

The coordinated activity — a collection of memes, photos and posts on issues like feminist empowerment, indigenous rights and the Immigration and Customs Enforcement agency — show the enormity of the challenge ahead of Facebook, as it tries to weed out impersonators. As the forces behind the accounts become harder to detect, the company is left to separate the ordinary rants and raves of legitimate users from coordinated, possibly state-backed attempts to sway public opinion.


“How Fake Influence Campaigns on Facebook Lured Real People”


Facebook has been under intense pressure since the 2016 presidential election for failing to detect foreign meddling on its platform. The company did not identify who was behind the latest influence campaign, but it said the activity mimicked the manipulation of social media in 2016 by the Russian-backed Internet Research Agency. Facebook also said there were connections between the latest fake accounts and pages and some that it had terminated in a previous purge of Russian fakes.

But even as Facebook moved more quickly this time to limit meddling, some said the company has become heavy-handed. The activists working on the counterprotest, which is scheduled for Aug. 10 to 12, said Facebook went too far by removing videos and messages that real people had posted. That essentially is forcing them to start over in gathering followers and building momentum to stage an effective protest, they said.


“Senators: Trump ‘not paying attention’ to Russian threats in 2018”


Two leading senators are asserting that President Donald Trump has not focused on the clear threat the Kremlin poses in the 2018 elections, with one Republican on the Senate Intelligence Committee contending that Russian hackers may have already targeted most — if not all — sitting US senators.

Ratcheting up the push for a more robust US response to Russian interference in the midterms and 2020 elections, Republican Sen. James Lankford of Oklahoma and Democratic Sen. Amy Klobuchar of Minnesota are now slated to get a committee vote this month on a bipartisan bill is aimed at shoring up the nation’s election system. But the two senators said their plan has run into hurdles for months — and say the Russian threat is real headed into the midterms.
In a joint interview as the primary season wraps up and with the November midterms less than 100 days away, the senators told CNN Wednesday that there is far more that has to be done — from the White House on down to the states.

“Republicans block $250 million to beef up election security”

USA Today:

Senate Republicans blocked a Democratic push Wednesday that would have provided $250 million to beef up election security.

The money would have been doled out in grants through the Federal Election Assistance Commission and helped, among other things, replace outdated voting equipment and increase cybersecurity efforts.

But the amendment failed Wednesday on a 50-49 vote, 10 votes shy of the 60 needed for it to pass. The votes fell almost entirely on party lines as only one Republican — Sen. Bob Corker (Tenn.) — voted for the grant. …

Congress had allocated $380 million in election security grants in March after intelligence assessments detailed a coordinated and continued effort by Russia to interfere in U.S. elections.

The blocked $250 million would have covered the fiscal year 2019, which starts Oct. 1, just ahead of the midterm elections.

Republicans have argued it is too soon to allocate new money for the following year and want to see how states use the $380 million already set aside for election security efforts.


“Corporate donations are new test for Democratic candidates”


Long considered a peripheral issue in midterm elections, money in politics is emerging as a new litmus test for Democratic candidates. In ads, stump speeches and debates, scores of politicians are pledging to reject corporate PAC donations. Their ranks include a handful of Democrats, including Harris, who are widely rumored to be exploring presidential bids: New Jersey Sen. Cory Booker, New York Sen. Kirsten Gillibrand and Massachusetts Sen. Elizabeth Warren. Joining them is Vermont’s independent senator, Bernie Sanders.

In total, more than federal 170 candidates have said they’re not accepting corporate PAC donations, according to a tally by the group End Citizens United, a political action committee dedicated to campaign finance reform.

The groundswell of opposition to corporate PACs has developed quickly as Democrats aim to tap into the anti-establishment sentiment that President Donald Trump successfully harnessed in 2016. When Rep. Ro Khanna, D-Calif., started the “NO PAC Caucus” in July 2017, only two members joined his cause — Rep. Beto O’Rourke, who’s now challenging Sen. Ted Cruz in Texas, and Democratic Rep. Jared Polis, the party’s gubernatorial nominee in Colorado.

“There wasn’t a lot of interest. I was told it would unnecessarily ruffle feathers,” said Khanna. “But now it has really caught people’s imagination across the country.”

The pledge may be more symbolic than financial: In a world of dark money and super PACs, corporate donations make up only a small percentage of the total dollars flooding into the political system.

“Corporate PACs making contributions is not where the major campaign finance action is these days,” said Rick Hasen, an election law expert at the University of California at Irvine. “If you asked me to name the top 10 things wrong with campaign finance, I’m not sure corporate PAC money would be among them.”


“Inmates Are Getting Registered To Vote In One Of The Country’s Biggest Jails”


Cook County jail is one of the largest jails in the country. It’s had its share of civil rights violations, though in recent years the jail has undergone major changes, with the reduction of on-site violence being one major achievement.

Another achievement is re-enfranchising thousands of potential voters.

Cook County Sheriff Tom Dart (D) began granting activists access to the jail to register people to vote in the months leading up to the 2016 general election. So far the group, which visits the jail monthly, has registered more than 1,800 detainees and wants to get hundreds more on the rolls ahead of this year’s midterms.


“Federal Court Strikes Down Michigan Law Banning Straight-Ticket Voting”

Common Cause:

Today a federal judge struck down a 2015 bill passed by the Michigan legislature and signed by Governor Snyder to ban straight-ticket voting. Common Cause joined the A. Philip Randolph Institute, the Democratic Party of Michigan, and Michigan voters challenging the case in court.

In his 103 page opinion, U.S. District Judge Gershwin Drain found the legislature “intentionally discriminated against African Americans” by trying to eliminate straight-ticket voting.

From the opinion:

There is no evidence of racial animus. It is unmistakable, however, that Michigan’s Republican-dominated legislature enacted PA 268 to win elections—especially down-the-ticket contests—through suppressing African-Americans’ reliably Democratic votes. Accordingly, the Court concludes that the Plaintiffs have prevailed on their intentional discrimination claim under the Equal Protection Clause.


9th Circuit Rejects en Banc Consideration of Poway Case Against California Voting Rights Act, for Now

Order from the 9th Circuit:

Filed order and amended memorandum (SUSAN P. GRABER, MILAN D. SMITH, JR. and ALVIN K. HELLERSTEIN). Movants-Appellants petition for panel rehearing filed in case No. 18-55506 is GRANTED in part. The memorandum disposition filed June 14, 2018, is amended by the memorandum disposition filed concurrently with this order, as follows: On page 3, at the end of paragraph 1, insert the following: See, e.g., Branch v. Smith, 538 U.S. 254 (2003) (considering on the merits a challenge to a redistricting plan by individual voters in the affected geographic area). We, of course, express no view on the merits of any of Plaintiffs theories. See Ariz. State Legislature v. Ariz. Independent Redistricting Commn, 135 S. Ct. 2652, 2663 (2015) (holding that the state legislature had standing to challenge redistricting and cautioning that courts must not conflate the potential weakness of a claim on the merits with an absence of Article III standing). With this amendment, Judges Graber and M. Smith have voted to deny Movants-Appellants petition for rehearing en banc, and Judge Hellerstein has so recommended. The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on it. Movants-Appellants petition for rehearing en banc is DENIED. Movants-Appellants “Motion for Designation as Party-Respondents” in case No. 18-55455 is DENIED and “Motion to Recall the Mandate” in case No. 18-55455 is GRANTED only for the limited purpose of filing this order to amend the memorandum disposition filed June 14, 2018. No further petitions for panel rehearing or for rehearing en banc may be filed. The mandates in these cases shall issue forthwith.; Amending Disposition Memorandum REVERSED and REMANDED for further proceedings consistent with this disposition.

The case is back before the district court, and there is no question to me it will be back before the 9th Circuit (and perhaps the Supreme Court) at some point down the line.


Today’s Must-Read: “Kris Kobach’s Lucrative Trail of Courtroom Defeats”

Great ProPublica/KC Star joint venture:

Kobach used his work in Valley Park to attract other clients, with sometimes disastrous effects on the municipalities. The towns — some with budgets in the single-digit-millions — ran up hefty legal costs after hiring him to defend similar ordinances. Farmers Branch, Texas, wound up owing $7 million in legal bills. Hazleton, Penn., took on debt to pay $1.4 million and eventually had to file for a state bailout. In Fremont, Neb., the city raised property taxes to pay for Kobach’s services. None of the towns are currently enforcing the laws he helped craft.

“This sounds a little bit to me like Harold Hill in ‘The Music Man,’ “ said Larry Dessem, a law professor at the University of Missouri who focuses on legal ethics. “Got a problem here in River City and we can solve it if you buy the band instruments from me. He is selling something that goes well beyond legal services.”

Kobach rode the attention the cases generated to political prominence, first as Kansas secretary of state, and now as a candidate for governor in the Republican primary on Aug. 7. He also earned more than $800,000 for his immigration work, paid by both towns and an advocacy group, over 13 years.

Kobach’s recent legal struggles have been widely reported. In June, a federal judge handed him a sweeping courtroom defeat, overturning a Kansas law that required proof of citizenship to register to vote. The judge went so far as to order him to attend six hours of continuing legal education after he repeatedly botched basic courtroom procedure. Another recent Kobach endeavor, a federal commission aimed at combating voter fraud, which he co-chaired, shut down after a bevy of lawsuits challenged it.

But Kobach’s failures in the courtroom date back far longer. An investigation by ProPublica and the Kansas City Star shows that the towns Kobach represented — small, largely white municipalities overwhelmed by real or perceived demographic shifts — were swayed by Kobach’s message: An ordinance would solve their problem and could be easily defended in court. Based on public records requests, filed in June with the towns that Kobach represented, this article for the first time details the costs to municipalities and the payments to Kobach for his lengthy local legal campaigns.


Breaking: Michigan Supreme Court, on 4-3 Vote, Allows on Ballot Voter Initiative to Take Redistricting Away from Michigan Legislature

You can find the 121 pages of opinions, which did not split simply by party lines, at this link.

(Michael Li: Opinion is by Justice Vivano who is a Republican appointed by Gov. Rick Snyder. Justice Clement, another Republican Synder appointee joins him and the two Democratic justices in the majority.)

Voters will now get to decide whether or not to adopt redistricting reform before the 2020 redistricting round.

Chief Justice Stephen Markman, for three Justices, dissented. Footnote 63 of the majority opinion quotes Justice Markman’s language against him:

The Chief Justice’s dissent does not engage in a textual analysis of our Constitution—it does not, for example, directly examine the meanings of the relevant terms, but rather looks to what a few cases have said, generally, about those terms. However, “a judge must remember ‘above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put upon it.’ ” Markman, On Interpretation and Non-Interpretation, 3 Benchmark 219, 220 (1987), quoting Douglas, Stare Decisis, 49 Colum L Rev 735, 736 (1949); see also Goldstone v Bloomfield Twp Pub Library, 479 Mich 554, 561 n 4; 737 NW2d 476 (2007) (recognizing that “the actual language of the proposed constitution constitutes the best evidence of the ‘common understanding’ ” of the ratifiers).

Even so, we believe the Chief Justice’s dissent engages in revisionist legal history when it asserts that our precedents in this area have established “longstanding standards” on this point that are “consistent and compatible with each other, as well as with what is required by our Constitution . . . .” Post at 12. Indeed, the opinion labors to give its rule some provenance by repeatedly citing the age of the cases he relies upon, rather than focusing on their content. See post at 11 (“[F]or at least the past 85 years in Michigan, governing law concerning direct constitutional change has been characterized by the following . . . .”); post at 16 (“[O]ur Court would recognize, as [it has] for the past 85 years . . . .”); post at 17 (referring to “the standard set forth by our precedents over 85 years ago”); post at 18 (referring to “the standard set forth by our precedents over the course of 85 years”). And, for good measure, the dissent accuses the majority of altering these longstanding standards. But if the standard set forth in Laing and Pontiac Sch Dist and the Court of Appeals decisions in Citizens and Protect Our Jobs was so clear and longstanding on this point, one wonders why this Court refused to adopt it in 2008 in Citizens, instead issuing a highly unusual order leaving this area of law in a state of limbo. In any event, as already mentioned, Laing and Pontiac Sch Dist did not review the text of the Constitution or purport to establish any constitutional standard at all on this point. In light of this, it would be euphemistic to say that these cases have created a judicial gloss supporting the dissent’s reasoning—instead, they appear to us more like a spray-on tan.

If it is bad to depart from the plain language of our Constitution on the basis of a judicial gloss that is binding precedent, how much worse it must be to do so on the basis of the spotty and inapposite authority the dissent relies upon in this case. Cf. Markman, Resisting the Ratchet, 31 Harv J L & Pub Pol’y 983, 985 (2008) (“[T]o read the law consistently with its language, rather than with its judicial gloss, is not to be ‘harsh’ or ‘crabbed’ or ‘Dickensian,’ but is to give the people at least a fighting chance to comprehend the rules by which they are governed.”). Repeatedly calling these cases the “best and most authoritative and most consistent” precedents of this Court, post at 9 n 2, the “most compelling precedents of this state,” post at 9 n 2, and the “best and the most enduring relevant precedents of this state,” post at 19 n 9, does not make them so, even if with the use of italics.



North Carolina Sued Over Retroactively Stripping Constitution Party Members of Access to the Ballot

Progressive Pulse:

The Constitution Party of North Carolina is following through on its threat to sue the state over ballot access restrictions.

The Party and three of its members — James Poindexter of Surry County, Jerry Jones of Greene County and Gregory Holt of Craven County — filed suit a little over a week ago in U.S. District Court for the eastern district of North Carolina against the Kim Westbrook Strach, Executive Director of the State Board of Elections and Ethics Enforcement.

The State Board officially recognized the Constitution Party in June, and until then, its candidates did not have ballot access. Prior to official recognition, North Carolinians also could not register for affiliation with the Party.

Because of that, Poindexter and Jones ran for election in the primary as Republican candidates and the Holt ran in the Democratic primary. They all lost.

After the Constitution Party was recognized and held its nominating convention, they submitted Poindexter, Jones and Holt as candidates to the State Board. They were accepted and certified.

But then the General Assembly passed a “sore loser” law preventing anyone who lost in a primary election from being on the ballot in November (Senate Bill 486). The Governor vetoed the legislation but lawmakers overrode his veto and the measure became law June 20.


“Facebook Identifies an Active Political Influence Campaign Using Fake Accounts”


Facebook said on Tuesday that it had identified a political influence campaign that was potentially built to disrupt the midterm elections, with the company detecting and removing 32 pages and fake accounts that had engaged in activity around divisive social issues.

The company did not definitively link the campaign to Russia. But Facebook officials said some of the tools and techniques used by the accounts were similar to those used by the Internet Research Agency, the Kremlin-linked group that was at the center of an indictment this year alleging interference in the 2016 presidential election.

Facebook said it had discovered coordinated activity around issues like a sequel to last year’s deadly “Unite the Right” white supremacist rally in Charlottesville, Va. Activity was also detected around #AbolishICE, a left-wing campaign on social media that seeks to end the Immigration and Customs Enforcement agency.


“North Carolina Republicans Flip Out About Voters Knowing What They’re Voting On”


North Carolina lawmakers rushed back to the state capital with less than 24 hours notice last week because Republicans called for a special session to block voters from receiving more information about a wide range of proposed changes to the state constitution during this fall’s election.

The proposed changes to the constitution deal with a range of important subjects that can affect voter access to the polls and impact the trajectory of state courts. This includes adding a voter photo ID requirement and restricting the ability of the state’s Democratic governor to fill vacancies on state courts and appoint people to the state election board.

Current state law requires a bipartisan commission to write a short caption to appear on the ballot summarizing those amendments, but Republicans passed a bill during the July 23 emergency session that blocked those captions from appearing on the ballot. Gov Roy Cooper (D) vetoed the bill on Friday, but Republicans have a supermajority in the legislature and are expected to override it in a vote on Saturday.

The 3-person commission responsible for writing the captions, which are just a few words long, consists of the secretary of state, attorney general and the legislative services officer of the general assembly. Currently, Democrats outnumber Republicans on the panel 2-1. Republican legislators, who gave the commission power to write constitutional amendment captions in 2016, said the new law was needed because Democrats would write them to sway voters to vote the proposals down.

News and Observer:

The first meeting of a state commission responsible for explaining constitutional amendments to voters turned into a nearly hour-long criticism of some of the proposals.

Voters will see six proposed changes to the state constitution on their ballots this fall. The Republican-led Legislature pushed them onto the ballot, despite Democratic legislators’ objections to some of them.

Attorney General Josh Stein and Secretary of State Elaine Marshall, both Democrats and members of the Constitutional Amendment Publication Commission, bashed some of the proposed amendments, raising points that were muted or absent from legislative debates. The third commission member, Republican Paul Coble, did not attend the meeting, which gave Stein and Marshall the chance to offer their views without rebuttal.

Stein described one of the amendments as “the most radical restructuring of our government in more than 100 years, since the Civil War. It would essentially give the Legislature the power to run the executive branch.”



Election Law Academics Update

Here’s my yearly roundup of election law academic hires, promotions moves, visits, accolades:

Ellen Aprill has been given the Outstanding Academic Award for 2018 for distinguished academic achievement in the nonprofit section by the Nonprofit Organizations Committee of the American Bar Association’s Business Law Section.

Travis Crum begins his Bigelow fellowship at the University of Chicago.

Josh Douglas was promoted to full professor and is now the Thomas P. Lewis Professor of Law

Michael Hanmer was promoted to Professor in the Department of Government and Politics at the University of Maryland.

Michael Kang begins at Northwestern Law after a stint at Emory.

Carl Klarner left his research position at the University of Florida Gainesville to do full time political, academic and election law consulting pertaining to state legislative elections.

Michael Morley begins at FSU after a stint at Barry.

Mike Pitts began serving as vice dean at Indiana U, Indianapolis Law.

Teddy Rave received tenure at the University of Houston Law Center and was awarded the George A. Butler Research Professorship.

Lori Ringhand received a Fulbright Distinguished Chair Award.

Doug Spencer will be visiting at the University of Chicago (Harris Public Policy) for the academic year 2018-2019.

Nick Stephanopoulos will be visiting at Harvard Law School in the fall.

Ciara Torres-Spelliscy was promoted to Professor of Law at Stetson University College of Law.

Congratulations all!