Monthly Archives: July 2017

“How much proof is needed for a voter fraud allegation? NC board considers stiffer standards”

New & Observer:

Republicans and voting-rights advocates went head-to-head over a proposal that would have people make fact-based claims when they allege voters have committed fraud.

The State Board of Elections has proposed a stiffer standard for elections protests that would have people describe facts, say whether a lawyer helped them make their claims, and say whether they have any witnesses.

The rule is being considered in the aftermath of the November election and the close race between Republican Gov. Pat McCrory and Democrat Roy Cooper. Republicans filed complaints in more than 50 counties alleging ballots were cast by dead people, felons, and people who voted in other states. Most of those complaints were dismissed, but they helped delay vote counts….

The McCrory campaign and his Republican allies used protest forms to “make outrageous claims of voter fraud,” Hall said. As a result, voters were unfairly maligned and targeted on social media.

“They used charges of voter fraud for personal gain,” he said.

Democracy NC found that lawyers with a Virginia firm helped prepare nearly all the protests.

Dallas Woodhouse, executive director of the state Republican Party, said the rules would scare people away from filing protests.

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Maine SOS Dunlap, Rare Democrat on Pence-Kobach Voting Fraud Commission, Won’t Turn Over Maine Data

Press Herald:

Maine Secretary of State Matt Dunlap said Monday that he is unlikely to release any state voter registration data to the federal voter fraud commission to which he was appointed by President Trump.

Dunlap said he will reject a second request for the data from the commission’s vice chairman, Kansas Secretary of State Kris Kobach, who promised last week that the data would be held in confidence at the federal level.

But Dunlap said he is uncertain that the federal Freedom of Information Act would allow the data to be protected from disclosure once it is in the federal government’s hands. He said he wants the commission, to which he was appointed in May, to first set goals for what it hopes to achieve as it investigates Trump’s claims of widespread voter fraud.

The secretary of state also said he wants the commission to figure out how it intends to protect voters’ privacy rights before he hands over any statewide voter data.

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“U.S. judge set to hear new challenge to Trump voter commission Tuesday”

WaPo:

A federal judge will hear arguments Tuesday over whether a Watergate-era law prohibiting the government from collecting data on how Americans exercise their First Amendment rights bars President Trump’s Election Integrity Commission from American’s voting records.

U.S. District Judge Royce C. Lamberth of the District set the hearing Monday after Common Cause, a nonprofit government watchdog group, alleged that the Trump administration was violating the Privacy Act of 1974 by seeking the “quintessentially First Amendment-protected political party affiliation and voter history data” of every American.

The court could rule on the request for a temporary restraining order as early as Tuesday.

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3-Judge Court Denies Request for Special NC Elections in 2017 But Orders Legislature to Hurry Up for 2018

You can find the court’s unanimous 11-page opinion here. It is clear that the judges (1) think the NCGA dragged its feet repeatedly but (2) it is too late for 2017 special elections.  The delay worked in the state’s favor and bought the Republican legislature potentially a longer veto-proof majority in the NC legislature.

New lines must be drawn by September 1 or the Court will draw them.  But there’s this carrot for more time:

Upon filing of a motion no later than 5 p.m. on August 21, 2017, supported by evidence that Legislative Defendants (1) publicly disclosed the criteria to be used in drawing the remedial districts, (2) drew and publicly disclosed proposed remedial districting plans applying those criteria and remedying the constitutional deficiencies with the Subject Districts, and (3) made public a method and process for receiving comments and evidence from the public and other legislators, the Court will extend these deadlines for fourteen days.

Bet the NCGA does not do this to buy 14 more days.

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Must-Read: “Secret donations are helping to boost President Trump’s agenda, fights with investigators”

The great Fredreka Schouten of USA Today with this piece:

Groups spending millions in anonymous donations are leading the outside efforts to either defend President Trump or sell his agenda with voters and Congress, despite the president’s repeated calls to “drain the swamp” in Washington of special-interest money.

The political empire affiliated with billionaire Charles Koch has spent $2 million to date to advance Trump’s tax-cut blueprint and will hold events this week in Washington to kick off the next phase of its multimillion-dollar campaign to drive congressional support for a comprehensive tax plan to slice corporate tax rates and enact broader tax cuts.

Americans for Prosperity, the Koch network’s grass-roots arm, already has 50 events scheduled in August and September to help promote the tax plan.

The pro-Trump Great America Alliance is spending $450,000 on a TV and digital ad that casts special counsel Robert Mueller’s probe into possible collusion between Russia and Trump’s campaign as a “rigged game.”

The group already has pumped more than $3 million in advertising to advance Trump’s policies and has committed to spending $5 million more, said Eric Beach, a Republican strategist who helps run the group.

The Judicial Crisis Network, which spent $7 million to push Trump’s top judicial nominee, Supreme Court Justice Neil Gorsuch, is “prepared to spend whatever we need to spend to help President Trump fulfill his promise of restoring balance to our federal courts,” policy director Carrie Severino said in a statement.

Trump has more than 100 judicial vacancies to fill.

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“Why American Democracy Is Broken, and How to Fix It”

Jeet Heer in TNR:

Richard Hasen, a law professor at the University of California, wondered in a 2013 article whether this called for drastic measures: “The partisanship of our political branches and the mismatch with our structure of government raise the fundamental question: Is the United States political system so broken that we should change the Constitution to adopt a parliamentary system—either a Westminster system, as in the United Kingdom, or a different form of parliamentary democracy?” His formulation of the question, though, was too blunt. As he noted, any such constitutional change would be nearly impossible, especially given the gridlock that already exists. Thus, a Catch-22: The system is so broken that it needs to be changed, but there is no way to change it because the system is so broken.

One way to out of this paradox might to move toward something closer to a de facto parliamentary system, one that wouldn’t require constitutional change. The Senate could remove barriers like the filibuster, which prevents a simple majority from effecting change. Democrats might want to hold on to the filibuster now because it’s a guardrail against Republican policy, but in the long run, the political system would be more effective and accountable.

Congress could also restore now disused procedures like “regular order,” which McCain drew attention to in Tuesday’s speech. “Let’s trust each other. Let’s return to regular order,” he said. “We’ve been spinning our wheels on too many important issues because we keep trying to find a way to win without help from across the aisle.” As Peter C. Hanson of the Brookings Institution explains, regular order is “the budget procedure for debating and passing individual appropriations bills in each chamber. Today this procedure has been replaced by the passage of huge ‘omnibus’ packages at the end of the session, with little scrutiny and opportunity for amendment.” A few procedural changes (including, as it happens, limiting the filibuster) could bring regular order back to life, making budgeting decisions much more orderly and rule-bound. …

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“Election Officials, Homeland Security Begin to Formalize Cybersecurity Efforts”

WSJ: 

Officials from a dozen states and the federal government took preliminary steps this week toward more formal cooperation regarding election-security efforts at a two-day meeting near Albany, N.Y.

Attendees at the meeting Tuesday and Wednesday discussed coordinating information-sharing about potential cyberthreats among the U.S. Election Assistance Commission, the Department of Homeland Security and state and local election offices. The meeting followed months of sometimes contentious back-and-forth between federal and state officials. State election officials of both political parties have criticized the Department of Homeland Security’s decision in January to formally designate election systems “critical infrastructure.”

Federal officials said the designation will help DHS place a higher priority on election-security efforts, amid reports of potential hacking attempts against election computer systems during the 2016 general election. But many state officials said they are worried about whether the sharing of sensitive cybersecurity information could occur in a two-way manner.

Jim Condos, Vermont’s secretary of state and a Democrat, attended the meeting and said it facilitated “baby steps” toward cooperation in safeguarding the election process.

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“NC’s redistricting fiasco needs a rapid redrawing of districts”

News & Observer editorial:

The worst-kept secret on Jones Street is that Republicans probably have maps for new legislative districts in a locked drawer somewhere. This, while they’re pretending, in court hearings, to be worried about having enough time to draw and approve new districts – as directed by courts who found 28 of their existing districts to be racially gerrymandered.

But if a new map got out, Republican leaders might alienate some of their own members who might come out with a disadvantage in their re-election bids.

So they appear to be stalling. And to just insult Democrats a little bit more, they’ve brought in Thomas Hofeller, a veteran GOP consultant who helped draw the 2011 maps that included those legislative and congressional districts found by no less than federal courts to be racially gerrymandered, to draw the maps again. That’s just an in-your-face move at the Democrats from a woefully immature Republican leadership that governs like a schoolyard bully.

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“Leader Of Voter Fraud Probe Really Doesn’t Want To Release Trump Meeting Documents”

 HuffPost:

Kansas Secretary of State Kris Kobach (R) continued to fight releasing documents from a meeting with President Donald Trump in November, saying that the public did not need to see them and that disclosing them would impede his ability to serve on Trump’s commission to investigate voter fraud.

 ….

In the filing, Kobach, who is also running for governor of Kansas for 2018, seemed aware that releasing the documents would impact his work on the commission.

“It would undermine Secretary Kobach’s interest in fulfilling his appointed duty and responsibilities on the Presidential Election Commission which include being able to advise the President privately on matters within the purview of the Commission,” Kobach and his lawyer wrote. “The public broadcast of the Secretary’s documents related to these meetings with the President would hinder his ability to confidently advise the President.”

ACLU lawyers sought the documents because they say an attempt to amend NVRA would be a concession by Kobach that federal law, as written, does not allow the state to impose a proof of citizenship requirement. Kobach initially refused to turn over the documents to ACLU lawyers, saying they were irrelevant, but only did so after a U.S. magistrate judge forced him to do so. Those documents are currently under a protective seal from the court and not available to the public.

The magistrate judge also sanctioned Kobach with a $1,000 fine last month for misleading the court about the contents of the documents. In denying Kobach’s appeal of the sanctions, U.S. District Judge Julie Robinson noted Kobach had a pattern of misleading statements before the court.

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“Hackers descend on Las Vegas to expose voting machine flaws”

Politico:

Verified Voting, Simons said, plans to partner with Braun and several other groups that have not yet been named to aggressively campaign for increasing DHS grants that would pay for states to make specific upgrades to their election security systems.

“It’s actually pretty cheap to do it,” Braun said, putting the price tag at $500-600 million.

A significantly more secure election, while relatively difficult to implement, doesn’t need to be complicated, Simons said.

“We know how to protect ourselves against Russian hacking,” she said. “Paper ballots and post-election ballot audits before the results are certified. That’s what we need across the country. It’s a straightforward solution.”

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“The Geography of Campaign Finance Law”

David Fontana has posted this draft on SSRN (Southern California Law Review).  Here is the abstract:

Constitutional law is committed to a principle of geographic self-government: congressional districts and states are separately located and entitled to select different officials to send to Congress. James Madison explained in The Federalist Papers that checks and balances would only work if different places and their different politics were empowered to compete with and constrain one another. While constitutional law makes place significant for congressional elections, campaign finance law does not. Those with the resources to contribute often and in large amounts to congressional campaigns primarily reside in a few neighborhoods in a few metropolitan areas. Campaign finance law imposes no limitations and minimal disclosure on contributions from these places to other districts and states — places quite different than the ones where contributors reside. The result is that a few metropolitan areas dominate contributions to congressional campaigns.

Campaign finance law thus allows Congress to be controlled by very few places, dramatically undermining geographic self-government. While scholars have devoted substantial attention to other problematic features of money in politics, the geography of campaign finance law is a different constitutional problem justifying different constitutional solutions. This Article considers two types of legal responses: those that focus special attention on where campaign contributions are beginning and those that focus special attention on where campaign contributions are ending. While both types of solutions have their own respective constitutional benefits and negatives, they both share a common insight. Only by making campaign finance law conscious of place can we begin to address the problems of the geography of campaign finance law.

This looks interesting.  See also this related amicus brief from David and Free Speech for People in Alaska out of state contributions case.

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