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About to be done producing free content for Elon here. Might just keep up automated tweets linking to blog posts. Find me @rickhasen@mastodon.online 
Gonna need a lot of help here. Thank you all
I had started posting @rickhasen@mastodon.online yesterday and the posts were automatically coming here as tweets too thanks to the mastodon-twitter cross-poster. I've turned that off. So follow me over there if you want my content.
Tomorrow morning (at 7 am PT) the Supreme Court is expected to issue opinions in its two remaining cases: Brnovich on voting rights and AFP v. Bonta on donor disclosure.
Here's what at stake and what I'll be looking for:
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Here's what at stake and what I'll be looking for:
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In Brnovich, the Democratic National Committee and others sued over two Arizona voting rules: one that doesn't count votes cast by a voter in the wrong precinct and one that prevents third party collection of absentee ballots (so-called "ballot harvesting"). /2
Democrats in Brnovich claim these rules violate Section 2 of the Voting Rights Act, which provides that minority voters must have the same opportunity as other voters to participate in the political process and to elect representatives of their choice. /3
say goodbye to the old #ELB website, with its blogger-dot-com, myspace, geocities vibe.
Gone in the next hour, to be replaced by something I hope you will love!
electionlawblog.org
(Site will be down for a few hours during transition; happening early because SCOTUS is late)
Gone in the next hour, to be replaced by something I hope you will love!
electionlawblog.org
(Site will be down for a few hours during transition; happening early because SCOTUS is late)
Out with the old....
...
#ELB: The Buried Lede in Jon Karl’s Flattering Bill Barr Story: Mitch McConnell Was Willing to Risk American Democracy to Save the Senate electionlawblog.org/?p=122869
Lots of people are buzzing today about Jon Karl’s piece in the Atlantic in which Bill Barr portrays himself in standing up to Trump and his claims of election fraud. As is typical in pieces where people from Barr world are sources, this paints Barr in the best possible light.
The piece does not even mention how Barr put forward outrageous and ludicrous statements about voter fraud before the election, suggesting that foreign governments would be mailing in thousands of absentee ballots. Barr continues on his rehabilitation tour.
#ELB: Coming July 1: The All New ELB: New Contributors, New Layout, and Some Great Content to Come electionlawblog.org/?p=122741
ELB survey results: readers are happy with the mix of news and commentary; want to see more coverage of the voting wars, redistricting, and campaign finance; and want more diversity of opinions and authorship.
I'll be listening to the Supreme Court's argument in the AFP case, which may have major implications for the constitutionality of campaign finance disclosure laws. Listen here: c-span.org/video/?510032-…
CJ Roberts out of the bat suggests skepticism of moving this analysis to "strict scrutiny." But in McCutcheon case, Roberts affirmed but redefined exacting scrutiny in contributions context to make it closer to strict scrutiny.
The level of scrutiny matters a lot because the stricter the scrutiny, the more likely the courts will strike down the law as an unconstitutional infringement on rights.
#ELB: Must-Read Nate Cohn: “Georgia’s New Law, and the Risk of Election Subversion” electionlawblog.org/?p=121512 /1
This @Nate_Cohn piece is a must-read, on the analytically distinct question of whether new laws like Georgia's allow for the subversion of election results, an analytically distinct question from voter suppression. /2 nytimes.com/2021/04/06/ups…
He writes: "trying to reverse an election result w/o credible evidence of widespread fraud is an act of a different magnitude than narrowing access.A successful effort to subvert an election wd pose grave&fundamental risks to democracy, risking political violence&secessionism."/3
#ELB: Breaking and Analysis: Supreme Court Refuses to Hear Cases Over Conduct of Election in Pennsylvania, With Justices Alito, Gorsuch and Thomas Dissenting electionlawblog.org/?p=120941 #SCOTUS
You can find Justice Thomas’s opinion, dissenting from denial of cert. in two-Pennsylvania election cases, and Justice Alito’s separate dissent joined by Justice Gorsuch in the same cases, at this link beginning at page 25 of the pdf. supremecourt.gov/orders/courtor…
The Court without noted dissent denied cert. in another PA case, the Kelly case. It takes four votes to agree to hear the case, and 5 to rule on the merits. There is no indication that Justice Barrett recused herself in consideration of the merits of these cases.
#ELB: Donor Sues True the Vote Claiming He Gave $2.5 Million to Fund Jim Bopp Litigation to Expose Fraud in Battleground States to Help Trump, But the Group Withdrew Their Complaints and Did Nothing. He Wants a Refund. electionlawblog.org/?p=119080
The complaint alleges that True the Vote through Bopp finally agreed to give back only $1 million of the $2.5 million to fund absurd voter fraud litigation, in exchange for an agreement not to sue for the rest.
The complaint also alleges that True the Vote withdrew its four lawsuits filed by Bopp in consultation with the Trump campaign.
The reason for the withdrawal have not been made clear publicly.
The reason for the withdrawal have not been made clear publicly.
#ELB: Breaking: In Total Loss for Trump Campaign in Its Most Major Remaining Election Case, Federal Court in Pennsylvania Dismisses Case and Denies Motion to File Amended Complaint [link to opinion] electionlawblog.org/?p=118942
The federal court judge just EXCORIATES the Trump campaign for seeking to disenfranchise nearly seven million Pennsylvania voters with SHODDY legal arguments. We told you it would be this way:
From the judge on the merits: "Plaintiffs’ only remaining claim alleges a violation of equal protection. This claim, like Frankenstein’s Monster, has been haphazardly stitched together from two distinct theories in an attempt to avoid controlling precedent."
#ELB: In Outrageous 2-1 Decision Ignoring Reliance Interests and Rejecting the Purcell Principle, 8th Circuit Panel Orders Segregation of Late Arriving Ballots in Minnesota, With Strong Hints Late Arriving Ballots Will Be Excluded from The Count electionlawblog.org/?p=117784
another link to the opinion that might work better: ecf.ca8.uscourts.gov/opndir/20/10/2…
Not sure if the state should go to SCOTUS at this point on this, but if they do it would test the reliance theory.
#ELB: “The Supreme Court’s Pro-Partisanship Turn” electionlawblog.org/?p=113488 My new one @GeorgetownLJ Online. Here is the abstract:
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The Supreme Court’s conservative majority has taken the Court’s election jurisprudence on a pro-partisanship turn, which gives political actors freer range to pass laws and enact policies that can help entrench politicians (particularly Republicans) in power... /2
and insulate them from political competition. /3
The donations include $1 million to major Democratic super PAC, Priorities USA. All the major Dems got donations (including Adam Schiff, as I'm sure we will soon hear a lot) opensecrets.org/search?order=d…
Yes it appears Khawaja later donated to Trump inauguration as well. It does not appear that this is part of this indictment, though it is hard to tell without seeing the indictment itself (so far I can only find press release)
#ELB: Save the Date (Feb. 28, 2020) for Important @UCILaw Conference: “Can American Democracy Survive the 2020 Elections?” electionlawblog.org/?p=107761
What a lineup we have for this Feb. 28 @UCILaw event, "Can American Democracy Survive the 2020 Elections?"! law.uci.edu/events/electio…
Nifty flyer for our Feb. 28 @ucilaw event
#ELB: “Joaquin Castro doubles down amid backlash over tweeting names of Trump donors” electionlawblog.org/?p=106805
In light of the donor disclosure controversy involving Joaquin Castro, I'm going to tweet out the abstract of an article I wrote on this topic, Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age papers.ssrn.com/sol3/papers.cf… (Journal of Law and Pol)
Everywhere you look, campaign finance disclosure laws are under attack. Disclosure has been opposed by the National Organization for Marriage, Senate and House Republicans (including Senator McConnell, who used to call for no limits and full disclosure),
#ELB: Gaming Out the Census Citizenship Question Endgame: What Comes Next, and How Will Things End? electionlawblog.org/?p=106084
From this @Arianedevogue @cnn report, it sounds like DOJ will tell Judge Hazel that they are still thinking of what reason they might have for including the citizenship question on the census, but not say what that reason IS. /1
If DOJ responds this way in census case, it will trigger an evidentiary hearing in Maryland on whether Administration acted (and continues to act) with racially discriminatory intent in seeking to add citizenship question. /2
#ELB: DOJ is Looking For Path to Continue Adding the Citizenship Question on the Census After Trump Tweet: My Thoughts on What Happens Next electionlawblog.org/?p=106038
For those wondering, the #ELB post about Trump and the citizenship question on the census is only the second time "shitshow" has appeared on ELB. The other one involved Kobach and a quote from @VP Pence's office.
And DOJ confirms it in writing to Judge Furman:
#ELB: Federal Court in Maryland Census Case Gives Trump DOJ Until 2 PM Friday to Stipulate that Census Question Is Off the Census or the Case Goes Forward electionlawblog.org/?p=106035 A sign things are still unsettled in rump Administration, despite yesterday’s champagne popping.
WSJ: “Nobody has any f—ing idea,” one of the people said, asked what the president’s tweet was referencing. The person described the tweet as “meaningless.” wsj.com/articles/trump…
*Trump, not rump, Administration
#ELB: I Testified at House Judiciary Committee on Foreign Interference in the 2016 and 2020 Elections, and the Implications of the Mueller Report and President Trump’s Statements Welcoming 2020 Foreign Help electionlawblog.org/?p=105703 (written statement and hearing video)
My favorite moment in today's hearing was when I was able to respond to Rep. Buck who wrongly suggested I said that taking all opposition research from foreign sources was illegal, pointing to Steele dossier. I highlighted this part of my remarks, quoting from Repub House report.
As I explain in my testimony American leaders from Washington and Hamilton to Justice Stevens and Justice Kavanaugh have recognized the need to keep out foreign influences over American elections.
#ELB: “Supreme Court conservatives sympathetic toward Trump census citizenship query” electionlawblog.org/?p=104808
Looks like CJ Roberts is accepting the pretextual excuse that the citizenship question on the census is necessary to enforce the Voting Rights Act. (It's not). So it's the ideological Roberts, not the institutional Roberts showing up here @Slate slate.com/news-and-polit…
By the way, here's how many Voting Rights Act section 2 cases the Trump DOJ has brought where it might rely upon citizenship data:
0
0
