Part 1: Top Blog Posts of 2017 - Gorsuch and Fake Election Law News

Today and next Friday, the RNLA will highlight the top blog posts of the Republican Lawyer Blog for 2017.  This is part 1: Top RepLawyer Posts for 2017, numbers 10-6.  Today’s post will focus on Justice Neil Gorsuch and election law.  No reasonable lawyers’ group can look back on 2017 and not celebrate the confirmation of Justice Gorsuch.  On elections, it is unfortunate that Democrats continue to use the race card and fight against those trying to make elections more open, fair, and honest for all.  

10.  April 10: "Congratulations to Justice Gorsuch"  Excerpt:  
RNLA Co-Chair John Ryder agreed: “Judge Gorsuch is a worthy successor to Justice Scalia. I am delighted that President Trump has delivered on his promise to the American people to nominate someone who fits the mold of Justice Scalia. I am equally pleased that the Senate saw fit to honor the will of the people by confirming Judge Gorsuch."

9.  January 13: "EAC Commissioner Questions Extension of DHS' Power to Elections"  Excerpt:  
Election Assistance Commissioner Christy McCormick stated: “This action politicizes elections. There is a reason that the Founding Fathers gave the authority of conducting elections to the States. There is a reason that when Congress set up the U.S. Election Assistance Commission (EAC), they made it a bipartisan, independent agency and gave it no regulatory authority.” 

8.  March 27: "ICYMI, Study Showing Voter ID Suppressed Minority Turnout Was ‘Fake News’"  Excerpt:
“Many federal courts have been asked to do the same: Find a causal link between voter ID and intentional decreases in minority turnout,” [Logan Churchwell, spokesman for the Public Interest Legal Foundation] said. “All eventually failed. Despite this, too many in the media are willing to report an initial study as gospel before peer reviewers can weigh in. It should have struck many news editors weeks ago that it took until 2017 to provide proof to a belief that could have been confirmed a decade ago, if true.”

7.  January 5: "Sessions' ‘Racist’ Vote Fraud Prosecution Was to Protect Black Voters' Voting Rights"  Excerpt:
“As Craig Donsanto says, this was a prosecution intended to preserve and protect the right to vote, something to which he dedicated his entire professional career. Anyone who claims this was a racist prosecution by Jeff Sessions is, according to Donsanto, “a liar and a political opportunist of the worst kind.”

6.  April 18: "Justice Gorsuch Asks at First Oral Argument, Why Not Follow ‘Plain Text of the Statute'?"   Excerpt:  
Gorsuch focused his first line of questioning on the wording of the statute, asking the employee’s attorney, Christopher Landau, several questions about where in the law it says district courts have jurisdiction to hear civil service claims.   “Wouldn't it be a lot easier if we just followed the plain text of the statute?” asked Gorsuch.

Look for part 2 next Friday.  Happy Holidays!

EAC Commissioner Questions Extension of DHS' Power to Elections

Last week, the Department of Homeland Security announced that it was designating election systems as "critical infrastructure," thereby bringing elections under the purview of DHS.  EAC Commissioner Christy McCormick raised serious questions and concerns about this extension of federal power over elections:

1. The scope and effect of this action is unknown. There was not a thorough discussion or review of what the designation means. . . . The so-called benefits of a critical infrastructure designation provided by DHS appear no different than those that have already been provided. . . . I am still unconvinced that a declaration of critical infrastructure status is necessary for DHS to help the States with security efforts, because we’ve already seen them do so.

2. This action politicizes elections. There is a reason that the Founding Fathers gave the authority of conducting elections to the States. There is a reason that when Congress set up the U.S. Election Assistance Commission (EAC), they made it a bipartisan, independent agency and gave it no regulatory authority. Our nations elections should not be handled or governed by a partisan branch of the Federal Government. The party that occupies the White House singularly controls the DHS and other Federal agencies in the Executive Branch.

Pick which party you want driving the security of our elections--are you comfortable with the other party doing so? It's important that we maintain the decentralized nature of our elections so that our voters and citizens can maintain faith and confidence that our elections are run freely and fairly, and that they can depend on the integrity and accuracy of the outcomes. 

3. The designation creates a layer of non-transparency and unnecessary Federally controlled bureaucracy. . . . 

[4.] The technical explanation for this designation is insufficient. . . .  

[5.] The critical infrastructure designation opens the States to legal, financial and privacy liabilities. . . . 

[6.] The process leading up to this designation has been disingenuous, at best. . . .

Commissioner McCormick concluded by requesting that President-elect Trump reverse the action and provide for productive, non-instrusive federal-state cooperation on election security:

Elections officials asked for more time, conversation, and discussion and a thorough understanding of the scope and benefits of the critical infrastructure designation. That request was flat out denied by the unilateral action of Secretary Johnson. I ask that President-elect Trump and his designated DHS Secretary General Kelly immediately reverse this unjustified and unsupported critical infrastructure designation, as well as Executive Order 13694, review the actions of DHS, provide a non-intrusive way for our intelligence community to provide information and resources to our election administrators, and leave the conduct of elections to the States as mandated in our Constitution. Thank you. 

Thank you, Commissioner McCormick, for standing up for election administrators across the country and fighting this federal intrusion into election administration.

A Third Strike for Obama at the EAC

Yesterday, President Obama nominated Kate Marshall to the Election Assistance Commission (EAC). A brief review of his previous nominations seems to be in order. All too often the Democrats consider election administration in a partisan fashion, seeking to advance a political agenda or scare their base.  

President Obama seemingly believed such when he nominated the hyper-partisan liberal extremist Myrna Perez previously.  As we wrote at the time:

It is hard to imagine a person less suited for a commission whose job is to be “independent, bipartisan commission charged with developing guidance to meet HAVA requirements” than Ms. Perez.  Some of the Help America Vote Act, or HAVA’s, requirements were for states to update their voting rolls.  An effort which Ms. Perez has long opposed calling such efforts “list purging” with made up statistics and overheated rhetoric.  An example of the latter is Ms. Perez once said: “purging happens all across the country, probably every day.” 

To election officials of both parties that statement is ridiculous but it is the kind of extremist rhetoric that Ms. Perez has been spouting for years against Republicans and Democrats who try to enforce laws on voting that the far left opposes.  In Ms. Perez’s world such Republicans and Democrats are racists or fear mongers. 

According to Perez, Secretaries of State and other election officials spend their time trying to remove people from the voting rolls.  Such rhetoric and her extreme partisanship resulted in Perez being forced to withdraw her name.  

President Obama replaced Perez's nomination with Matthew Butler. Butler was the former CEO of Media Matters. While Perez was a partisan extremist on election issues, Butler had no experience at all on election issues.  He is now the Chief of Staff for the Democratic National Convention. In other words, he was only a partisan.  

Which brings us to the current nominee, Kate Marshall. She similarly has no election administration background. (Although unlike Butler, at least she "applied" for such a position when she ran unsuccessfully for Nevada Secretary of State.)

And that is how the Democrats view the EAC: a place to reward partisans for their service to the liberal movement. It is sad that the left has so little regard for election administration.

President Obama Sabotaging Our Elections and Making Elections More Parisian

The President took a step forward toward making elections less partisan and more open fair and honest with the Presidential Commission on Election Administration he announced in his 2013 State of the Union.   While parts of the report of the commission were Democrat talking points (more early voting despite the overwhelming evidence that early voting does not help with turnout), the report led by his own former counsel Robert Bauer had a number of items RNLA could agree with and that garnered support from all sides of the political spectrum.   

Now, however, he is taking two steps backward on election administration with a nominee put forward as a political reward with ZERO background in Election Administration.  As Hans von Spakovsky highlights:

On Nov. 19, the White House issued a press release announcing that it was withdrawing the nomination of Myrna Perez, a lawyer at the Brennan Center, to be a commissioner on the U.S. Election Assistance Commission (EAC). It instead nominated Matthew S. Butler, the former CEO and president of the George Soros-funded left-wing advocacy group Media Matters, to replace her.

The EAC is a bipartisan agency created in 2004 by the Help America Vote Act of 2002, the election reform law that Congress passed in the wake of the 2000 presidential election and the controversy over what happened in Florida. The EAC, which is governed by four full-time commissioners — two Democrats and two Republicans — is supposed to assist and guide state and local election administrators in improving the administration of elections for federal office.  The EAC serves as a national clearinghouse and resource for information about the best practices in election administration. It is also responsible for the accreditation of testing laboratories and the certification, decertification, and recertification of voting systems, like the electronic voting machines many people use when they vote in their precincts. .  . .

He[Butler]  has been a leader and organizer of the progressive movement, and the head of Media Matters when it was acting as an unofficial PR wing of the White House and the Justice Department. As first reported in 2012 by Matthew Boyle [2], the administration was working with Media Matters “in an attempt to quell news stories about scandals plaguing [Eric] Holder and America’s top law enforcement agency,” including using Media Matters “to attack reporters” at Townhall, Breitbart, The Daily Caller, Fox News, and National Review.

The other three new commissioners on the EAC, in stark contrast to the former Media Matters CEO and president, actually have relevant election experience.

. . . Most disappointingly, the nomination of an individual with no relevant experience in the area he is tasked with administering looks like political patronage of the worst kind. President Obama has rewarded Media Matters for its underhanded, deceitful, behind-the-scenes help in going after reporters and others who were raising legitimate concerns about the questionable actions of the administration. This also does not portend well for having a bipartisan agency that tries to act in the best interests of the American voter as opposed to the best interests of one particular political party and its candidates.

President Obama has been using Ambassadorships to pay off political supporters for a while.  This is arguably much worse as this a position with a serious opportunity for political mischief.  We can only hope that Mr. Butler’s nomination is withdrawn before the next Congress.  If not, we hope that Democrats will join with Republicans in opposing this unqualified partisan.  Shame on President Obama for walking away from his 2013 State of the Union commitment on election administration.   

Obomination: The Latest Liberal Effort in their War Against Accurate Voter Rolls

We pointed out previously the hypocrisy of the Democrats efforts opposing list maintenance or efforts to keep accurate voter rolls despite the recent Presidential Commission’s Report on Election Administration supporting such efforts.  The latest example of this hypocrisy is the nomination by President Obama of Myrna Perez to be a commissioner for the Elections Assistance Commission(EAC)  Her views are so extreme, the RNLA has decided to take the unusual position of formally opposing her nomination. 

It is hard to imagine a person less suited for a commission whose job is to be “independent, bipartisan commission charged with developing guidance to meet HAVA requirements” than Ms. Perez.  Some of the Help America Vote Act ,or HAVA’s, requirements were for states to update their voting rolls.  An effort which Ms. Perez has long opposed calling such efforts “list purging” with made up statistics and overheated rhetoric.  An example of the latter is Ms. Perez once said: “purging happens all across the country, probably every day.”

To election officials of both parties that statement is ridiculous but it is the kind of extremist rhetoric that Ms. Perez has been spouting for years against Republicans and Democrats who try to enforce laws on voting that the far left opposes.  In Ms. Perez’s world such Republicans and Democrats are racists or fear mongers. 

As our opposition letter details, Ms. Perez has regularly been guilty of gross exaggeration.  This type of rhetoric for an agency that is to work on a bipartisan basis is completely inappropriate.

President Obama’s nomination of Ms. Perez to be an EAC Commissioner should be rejected by Senators of both parties who value open fair and honest elections.  

North Carolina Becomes Latest State to Implement Common Sense Voter ID

Last Thursday, North Carolina lawmakers passed a measure that requires residents to present photo identification to vote, joining the increasingly long list of states that have approved similar common sense voter ID measures. In the past two years, at least 11 states have approved laws requiring voters to show identification at voting booths.

The law will require voters to present a government-issued photo identification at the polls, consolidated the early voting period, eliminated the fraud and problem ridden same-day voter registration, and stopped a bizarre pre-registration program for people under 18.

North Carolina Senate President Pro Tempore Phil Berger called the bill:

 “A measure that restores confidence in our election process and ensures voters are who they say they are is a no-brainer — and nearly three-quarters of North Carolinians agree.” And said that “This bill will bring North Carolina in line with the majority of other states that already require voter ID.”

The proposed changes now head to the desk of Republican Gov. Pat McCrory where it will likely be signed into law. Governor McCrory praised the bill in a media conference Friday, saying it will restore faith in elections by requiring voters to present government-issued identification at the polls.

The Supreme Court's recent ruling in the Shelby case cleared the way for North Carolina  to become the first Southern state in the nation to enact voting law changes without fear for having to obtain prior approval from the partisan Eric Holder led Justice Department.  Holder has signaled he will still use the Department of Justice for political purposes .  However, in light of the Supreme Court's recent decision, he will have a much harder time accomplishing that purpose on Voter ID laws.   

"We understand there will be lawsuits," said Senate President Pro Tempore Phil Berger who is a lawyer. He added, "It's our belief the laws we are passing are consistent with Constitutional requirements and they will be upheld."

A poll this year showed that more than 72% of North Carolina residents support requiring voters to show photo ID before being casting their ballot, according to Berger. He described it as a “hugely popular, common-sense” provision.

North Carolina House Speaker Thom Tillis (R-Mecklenburg) remarked:

“With over 70 percent of North Carolina residents consistently supporting the implementation of a photo ID measure, this common-sense legislation responds to the majority of citizens who desire a fair and accountable election system.” and  “The passage of this bill is a testament to General Assembly members’ relentless efforts in working to strengthen our election system.”

Tillis’s sentiments were echoed by one of the bill’s primary sponsor’s Harry Warren (R-Rowan):

“This bill is a necessary component to restoring confidence in our election system. By protecting the integrity of the ballot box, we ensure that every North Carolinian’s vote counts,”

Scott Cumbie, Chair of the Forsyth County, North Carolina Republican Party summed it up best:

 “As Republicans, we want to ensure that every American citizen has the freedom to vote and that they only vote once. And anything that ensures the integrity of the voting system is what we desire.”

Obomination: An Ultra Partisan Nominee for an Agency the President Once Tried to Defund

In his fiscal year 2012 Budget President Obama proposed to “zero out” the Election Assistance Commission’s grant funding.  As the President’s budget stated:

The Election Assistance Commission (EAC) administers Federal election administration grant funding to the States under the Help America Vote Act of 2002 (HAVA). Election Reform Grants are used to fund new and upgraded voting machines and support implementation of HAVA-mandated voter registration databases. Additional Federal funds are not needed to accomplish the purposes of HAVA since over $3 billion in Federal funds have been provided to the States since 2002, of which approximately $1 billion remains unspent as of September 2009. Besides eliminating unnecessary Federal spending, by providing no new Federal funding in 2012, States will be incentivized to spend current balances on HAVA-mandated programs to achieve State priorities for elections reform.

The House Administration Committee went a step further and has passed legislation to end the EAC, which has accomplished its mission and outlived its usefulness. 

However, it looks like now the President needs the EAC to do his dirty work again.  Since the IRS scandals happened and the IRS has presumably stopped targeting right-of-center groups, he needs a new agency to attack Republicans and conservatives.  Don’t forgot when demonizing the Supreme Court over Citizens United and attacking the Federal Election Commission failed to oppress free speech in elections by Republicans, President Obama even tried to get the Securities and Exchange Commission involved in the election intimidation business.  President Obama has been caught trying to damage our electoral process in a multitude of ways.

Now it looks as if he is going to try to revive the EAC in his latest efforts.   Last Friday, President Obama nominated Myrna Perez as a commissioner to the Election Assistance Commission.  Ms. Perez has not only long been associated with arguably the most partisan of outside groups that if the IRS was truly doing its job it would have investigated for partisanship, she has been one of the Brennan Center’s most extreme members.   Some of Ms. Perez’s views include:

·         Not only opposing Voter ID, but proposing being able to vote with an OUT OF STATE driver’s license in an election

·         Opposing list maintenance of any type and even participated in efforts to stop Florida and Colorado from doing virtually any form of list maintenance.  List maintenance was a key component of HAVA, the legislation for which the EAC was created.

·         Favors counting ILLEGAL ALIENS in the census.

Here’s the kicker, Ms. Perez has ZERO election administration experience.  The only reason to appoint Perez is to further the President’s war on open fair and honest elections.  Ms. Perez is a liberal hack for whom no Democrat position is too extreme. 

The President was on the right track in 2012 and should join the House in 2013 by eliminating the EAC. 

Is this the End of the Election Assistance Commission?

Last week, the House Administration Committee approved legislation to shut down the Election Assistance Commission (EAC). The EAC was originally organized over 10 years ago with a limited mission to help states improve their election systems. Many are saying it is no longer useful and leaving some to question whether it was useful to begin with.

"This agency needs to go,'' said Rep. Gregg Harper (MS-3), who introduced the bill to eliminate the Election Assistance Commission. "This agency has outlived its usefulness and to continue to fund it is the definition of irresponsibility.''

Congress created the Election Assistance Commission in 2002 as part of the Help America Vote Act to help states improve their voting systems by replacing old punch card and lever voting systems, and to implement statewide registration databases. When the Commission was created, it was only authorized for three years, yet more than 10 years later, with its mission largely complete, the EAC continues.

Rep. Todd Rokita(IN-4), former Secretary of State of Indiana and another member of the House Administration Committee stated:

“The EAC is an outdated program that no longer provides value to taxpayers. And unfortunately, the attitude demonstrated by this small agency is indicative of the problems we’re seeing across all agencies – that somehow, overseers in Washington, D.C., ought to be telling state and local officials how to do their jobs better. It is one more example of an overreaching, wasteful government program that must be cut if we’re going to get serious about our debt crisis and hold the federal government accountable to the Constitution,”

Many election officials on both sides of the political aisle across the country, including the National Association of Secretaries of State, support the ending of the EAC.

The chairwoman of the Administration Committee, Rep. Candice Miller (MI-10), called the Election Assistance Commission "a prime example of waste shielded by bureaucracy."

Currently, the agency's four commissioner slots are vacant and it has an acting executive director. Without enough commissioners, the commission can't adopt new policies, hold formal hearings or issue advisory opinions. Eliminating it would save $11.5 million a year.

Unfortunately, some Democrats seem to believe that the EAC is still needed.  It is not; it is time to end the EAC. 

You can listen to the full hearing regarding the EAC’s ineffectiveness here.