“US designates election infrastructure as ‘critical'”


Citing increasingly sophisticated cyber bad actors and an election infrastructure that’s “vital to our national interests,” Homeland Security Secretary Jeh Johnson announced Friday that he’s designating U.S. election systems critical infrastructure, a move that provides more federal help for state and local governments to keep their election systems safe from tampering.

“Given the vital role elections play in this country, it is clear that certain systems and assets of election infrastructure meet the definition of critical infrastructure, in fact and in law,” Johnson said in a statement. He added: “Particularly in these times, this designation is simply the right and obvious thing to do.”

The determination came after months of review and despite opposition from many states worried that the designation would lead to increased federal regulation or oversight on the many decentralized and locally run voting systems across the country. It was announced on the same day a declassified U.S. intelligence report said Russian President Vladimir Putin “ordered” an influence campaign in 2016 aimed at the U.S. presidential election.


#DemocracyRIP: Russians Sought to Undermine Legitimacy of a Clinton Presidency in Social Media Campaign

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.


DOJ Report Highlights Obama Administration Voting Rights Achievements

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.


Remedies in the WI Partisan Gerrymandering Case

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


“Sensing Gains Ahead Under Trump, the Kochs Court Minorities”


Fueling U.S. Forward is “dedicated to educating the public about the value and potential of American energy, the vast majority of which comes from fossil fuels,” the group says on its website. “We’ll talk to people of diverse backgrounds — industry employees, small-business owners, community leaders and low-income families — and share their stories.”

The group has seen early results from its outreach.

“Policies that subsidize electric vehicles and solar panels for the wealthy raise energy prices and harm the black community,” read recommendations adopted by delegates at the National Black Political Convention in Gary, Ind., in August. The event brought together African-American political groups and counted Fueling U.S. Forward among its sponsors…

The Kochs’ public relations drive takes a page from minority outreach by other industry lobbies, like those representing tobacco and soft drinks. Those industries have long argued that stiffer regulations or taxes on cigarettes or sodas would disproportionately affect low-income and minority communities.


Iowa: “State funding too tight for unnecessary Voter ID”

Lynda Waddington:

As telegraphed by key GOP lawmakers last month, a key component of Pate’s upgrades is Voter ID. This piece requires voters to produce approved forms of identification before casting ballots. Pate suggests Iowa-issued driver’s licenses, military-issued identification cards and passports.

As I wrote in a column three weeks ago, this is a solution in search of a problem.

The voter fraud witch hunt conducted by Pate’s Republican predecessor scrutinized 1.6 million Iowa votes and asked for further investigation of 117, or .0073 percent. Of those, only six led to criminal convictions.

Iowans learned that the tiny fraction of a percent of prosecuted voter fraud — .000375 percent of all ballots — was overwhelmingly perpetrated by former felons confused by state executive orders regarding when and how their voting rights were restored. More important, not one of those votes altered the outcome of an election.

Like Pate proclaimed in October 2016: “This state has a pretty darn good track record and I really resent anybody trying to blemish it.” Ditto.


“The Coming Speech Wars Online”

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.


“New pro-Trump political group readies for launch”


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”


“Iowa’s top election official announces voter ID bill”


 Iowa will require voters to show identification at the polls under a bill announced Thursday by the state’s top election official, and Republicans in the new GOP-controlled Legislature have indicated a willingness to pass it.

The legislation mirrors voter ID bills introduced in Republican-controlled statehouses around the United States in recent years and comes just weeks after President-elect Donald Trump questioned — with no evidence — the integrity of voting in the presidential election.

“We just want to ensure that voters are who they say they are,” Iowa Secretary of State Paul Pate said in releasing details.

Pate’s office said a draft of the bill was not available yet, but included a plan to require Iowa residents to show an Iowa driver’s license, passport or other approved form of ID to vote. The office would distribute free state-issued IDs to existing registered voters, according to Pate, though his office is seeking $1 million to help make that happen.

The bill would also prohibit college students from using school-issued IDs to vote. The counties that house Iowa’s three public universities were some of the handful of counties that voted for Democrat Hillary Clinton in the Nov. 8 election.

But of course.


“Judges block NC elections board overhaul as Roy Cooper’s lawsuit pends”

News & Observer:

A three-judge panel ruled on Thursday to uphold Gov. Roy Cooper’s request to block a revamp of the state elections board while his lawsuit makes its way through the courts.

In the first hearing before the panel of judges assigned to the case this week, Greensboro attorney Jim Phillips argued for Cooper that a law adopted by the General Assembly in one of its special sessions last month violates the constitutional separation of powers.

It was a similar argument to one made last week by Phillips on the eve of the date the law would have disbanded the five-member state Board of Elections and passed its duties to the state Ethics Commission.


“A House rules change you didn’t hear much about — and prosecutors won’t like”

Open Secrets:

The Office of Congressional Ethics was saved from the landfill  — where House Republicans had tried to bury it — by public outcry and a couple of tweets from President-elect Donald Trump.

But few noticed a sentence that did make it into the package of House rules changes passed Tuesday, making it more difficult to access documents having to do with the operations of a lawmaker’s office.

“Records created, generated, or received by the congressional office of a Member … are exclusively the personal property of the individual Member [emphasis added]… and such Member … has control over such records.”

Who cares whether a congressional office’s budget documents, maintained at taxpayer expense, belong to each individual member, rather than Congress as a body?

Maybe the Justice Department, for one. In investigating allegations of public corruption or misuse of funds, criminal investigators frequently need to subpoena such records.


Dilatory 3-Judge Court in Texas Redistricting Case Says to Plaintiffs: You’ll Get the Opinion When We are Ready


Text Order DENYING [1338] 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.


“Jeff Sessions Becomes One of Few Presidential Nominees Ever Opposed by Common Cause in 46 Years”


Today, Common Cause announced it opposition to the nomination of Sen. Jefferson Beauregard “Jeff” Sessions III (R-AL) to serve as U.S. Attorney General, deeming him unfit to serve as the nation’s top law enforcement officer. Senator Sessions has for decades been an outspoken critic of the Voting Rights Act, one of this country’s most critical pieces of civil and voting rights legislation, which paved the way for an inclusive democracy.    


NC Litigation Over Legislative Changes to Board of Elections

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.


“Drain the Swamp: Conflicts of Interest, Lobbying, and Corruption Solutions to Restore Trust in Government that Works for Americans”


Today, the Center for American Progress released a new report to address the threats to representative self-government inherent in special interest lobbying, revolving door politics, corruption of public service, and lax ethics and contracting oversight, as well as the major danger of direct conflicts of interest. These solutions are a starting point to restore trust in government that works for all Americans—not just wealthy special interests.

The report comes after a presidential campaign that centered on political corruption and raised demands to “drain the swamp,” and at a time when much of the country’s attention—and that of members of Congress—is tuned into issues of ethics and conflicts of interest, especially as it concerns President-elect Donald Trump and several of his cabinet nominees, including executives of some of the largest corporations and billionaires who supported his presidential campaign. As the report notes, CAP research shows that far too many Americans currently share the view that government is run by and for wealthy and powerful special interests, believing that “a few big interests looking out for themselves” are controlling government.


“Voter ID Laws Are So Last (Election) Season”

Bloomberg BNA:

Elections have consequences, and frequently they’re changes in election law.
New state legislatures often “rethink” election laws once in office, Edward B. Foley, director of Election Law at the Ohio State University Moritz College of Law, Columbus, Ohio, told Bloomberg BNA.
There’s no reason to think that won’t happen this time around, as Republicans solidified their hold on a majority of state houses, Foley said.
But with new legislation inevitably comes new litigation. The “voting wars will continue,” he said.
There may, however, be a new front in the war: voter rolls.

“GOP aims to rein in liberal cities”

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.


“The FBI Never Asked For Access To Hacked Computer Servers”


The FBI did not examine the servers of the Democratic National Committee before issuing a report attributing the sweeping cyberintrusion to Russia-backed hackers, BuzzFeed News has learned.

Six months after the FBI first said it was investigating the hack of the Democratic National Committee’s computer network, the bureau has still not requested access to the hacked servers, a DNC spokesman said. No US government entity has run an independent forensic analysis on the system, one US intelligence official told BuzzFeed News…

“CrowdStrike is pretty good. There’s no reason to believe that anything that they have concluded is not accurate,” the intelligence official said, adding they were confident Russia was behind the widespread hacks.


“Sessions ‘not a racist,’ says son of black couple once prosecuted for voter fraud”


Perry County Commissioner Albert Turner Jr., whose parents were unsuccessfully prosecuted for voter fraud by then-U.S. Attorney Jeff Sessions in the 1985, endorsed Alabama’s junior senator Wednesday for U.S. attorney general.

The Perry County voter fraud case against Albert Turner Sr., and his wife, Evelyn Turner, set off allegations that Sessions’ unfairly treated black defendants in such cases while turning a blind eye to voter fraud perpetrated by whites. The Turners were acquitted.

The older Turner, who was an aide to Martin Luther King Jr. and died in 2000, told NBC News at the time that he thought “the case was political.”

“I actually don’t think Jeff Sessions ever came in with an ounce of evidence,” he said.

Evelyn Turner told USA Today on Wednesday that her son did not speak for the family and that she did not agree with his endorsement of Sessions.

“That is not going to change as long as I’m black, I don’t think a change is in the cards,” she said, adding that Sessions “shouldn’t be named to catch dogs.”

The younger Turner’s views are at odds with his father.

“I have known Sen. Sessions for many years, beginning with the voter fraud case in Perry County in which my parents were defendants.  My differences in policy and ideology with him do not translate to personal malice. He is not a racist,” the Perry County commissioner said in a statement. “As I have said before, at no time then or now has Jeff Sessions said anything derogatory about my family. He was a prosecutor at the Federal level with a job to do.  He was presented with evidence by a local District Attorney that he relied on, and his office presented the case.  That’s what a prosecutor does.  I believe him when he says that he was simply doing his job.”


“Mix of Democrats and Republican judges to hear challenges to NC special session laws”

News and Observer:

The case challenging the law that would do away with the state Board of Elections as it stands today and merge it with the state Ethics Commission was assigned to the following panel:

Jesse Caldwell, a Democrat and Gaston County judge who has been on the bench since 1993.

Logan Todd Burke, a Forsyth County judge and a Democrat who first was appointed to the bench in 1994 by then Gov. James B. Hunt.

Jeff Foster, a Republican from Pitt County who was appointed to the bench by McCrory last year almost nine months before being elected to a full eight-year term.

Both panels are scheduled to hold hearings this week in cases that could test the laws adopted by the legislature in one of their special sessions last month.

The three-judge panels will preside over the cases because the challenges, in part, include constitutional questions.


“In Republicans’ Ethics Office Gambit, a Spectacle of Tweets and Retreats”

Carl Hulse in the NYT:

House Republicans might have amusedly applauded Mr. Trump’s cutting tweets when they were aimed at the news media and other common foes, but they found them measurably less funny when the criticisms were directed their way, raising alarms among Republicans about his power to corral them via social media. Following the decision to reverse course, several lawmakers were quietly fretting that Mr. Trump’s megaphone was much more powerful than they had realized.

Other Republicans both on and off Capitol Hill were wondering how the rules-change proposal got as far as it did, given the stated reservations of Mr. Ryan and Mr. McCarthy among others. They said it did not bode well that the rank and file was so willing to ignore leadership on such a potentially critical matter, demonstrating once again how hard it can be to manage the House Republicans even when the party is set to control both Capitol Hill and the White House.


“Jeff Sessions says he handled these civil rights cases. He barely touched them”

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.


Floyd Abrams, Who Argued Citizens United, Writes Letter for Gov. Cuomo Defending New NY Disclosure Requirements

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)


“GOP plans to crush Democratic opposition to Trump Cabinet”


Senate Republicans have a plan to break the Democratic resistance to Donald Trump’s Cabinet: Make their delay tactics as excruciating as possible.

With Senate Democrats threatening to drag out the confirmation process for weeks, the GOP is preparing to keep the chamber running around the clock if that’s what it takes to speedily confirm Trump’s Cabinet. It’s the kind of retaliatory strategy that would bring all-night sessions, 3 a.m. votes and a long slog through the first months of Trump’s presidency that could sap some of the GOP’s legislative momentum.


Huge Election Law Biz News: Paul Smith to Campaign Legal Center

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.

Tony Mauro:

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!


“Trump Can Forget About Filling Supreme Court Vacancy, Sen. Schumer Says” OR Goodbye Filibuster

NBC News:

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).


“Blue-state lawmakers want to keep Trump off 2020 ballot unless he releases tax returns”

WaPo reports.

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.