[EL] ELB News and Commentary 8/21/15

Rick Hasen rhasen at law.uci.edu
Fri Aug 21 08:11:35 PDT 2015


    “We used to count black Americans as 3/5 of a person. For
    reparations, give them 5/3 of a vote.”
    <http://electionlawblog.org/?p=75501>

Posted onAugust 21, 2015 8:09 am 
<http://electionlawblog.org/?p=75501>byRick Hasen 
<http://electionlawblog.org/?author=3>

Theodore 
Johnson<https://www.washingtonpost.com/posteverything/wp/2015/08/21/we-used-to-count-black-americans-as-35-of-a-person-instead-of-reparations-give-them-53-of-a-vote/?postshare=6031440153371840>WaPo 
oped.

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Posted invoting <http://electionlawblog.org/?cat=31>


    Why is Deez Nuts Surging? <http://electionlawblog.org/?p=75499>

Posted onAugust 21, 2015 8:08 am 
<http://electionlawblog.org/?p=75499>byRick Hasen 
<http://electionlawblog.org/?author=3>

FunTrip Gabriel piece: 
<http://www.nytimes.com/politics/first-draft/2015/08/20/deez-nuts-for-president-why-not-says-iowa-farm-boy/>

    Supporters who picked up the Deez Nuts meme tweeted to Public Policy
    Polling, a nonscientific polling operation, asking it to add him to
    its surveys, and it did. In head-to-head matchups with Donald J.
    Trump and Hillary Rodham Clinton, Deez Nuts drew 8 percent in
    Minnesota and 7 percent in Iowa.

    Tom Jensen, the director of Public Policy Polling, said he added
    Deez Nuts to statewide survey three weeks ago because “the name
    makes people laugh, and it’s a long presidential election.’’

    But Mr. Jensen also drew a serious conclusion from the Deez Nuts surge.

    “I would say Mr. Nuts is the most ludicrous and unqualified
    third-party candidate you could have, but he’s still polling at 7,
    8, 9 percent,’’ Mr. Jensen said. “Right now the voters don’t like
    either of the people leading in the two main parties, and that
    creates an appetite for a third-party candidate.’’

    After the North Carolina results, which were picked up by television
    news broadcast, Mr. Jensen thought the joke had run its course. But
    now that Deez Nuts is receiving a wave of publicity, the pollster is
    curious to see if the Deez Nuts candidacy can be lifted higher. Mr.
    Jensen plans to include the independent in polls in New Hampshire
    this weekend and in a national survey next week.

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Posted incampaigns <http://electionlawblog.org/?cat=59>


    “Election Law: Redistricting, Gerrymandering, and Civil Rights”
    <http://electionlawblog.org/?p=75497>

Posted onAugust 21, 2015 8:04 am 
<http://electionlawblog.org/?p=75497>byRick Hasen 
<http://electionlawblog.org/?author=3>

Legal Talk Network 
<http://legaltalknetwork.com/podcasts/special-reports/2015/08/election-law-redistricting-gerrymandering-civil-rights/>:

    Legal Talk Network producer Laurence Colletti interviews Benjamin
    Griffith, Robert Heath, Nancy Abudu, Tanya Clay House, and Nicole
    Austin-Hillery about election law at the 2015 American Bar
    Association Annual Meeting. The guests explain the history of
    election law and why redistricting is necessary, gerrymandering or
    packing similar voters into a district, and how legal cases often
    involve racial discrimination. This very complicated and important
    area of the law involves the disciplines of demography and political
    science, and directly affects the way the United States’ democratic
    system works.

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Posted inredistricting <http://electionlawblog.org/?cat=6>,Voting Rights 
Act <http://electionlawblog.org/?cat=15>


    “New election rules protect overseas voters”
    <http://electionlawblog.org/?p=75495>

Posted onAugust 21, 2015 8:01 am 
<http://electionlawblog.org/?p=75495>byRick Hasen 
<http://electionlawblog.org/?author=3>

Colorado SOS Wayne Williams 
<http://coloradostatesman.com/content/996039-williams-new-election-rules-protect-overseas-voters>:

    Earlier this month I adopted several amendments to the Secretary of
    State elections rules. In large part, these amendments are “cleanup”
    in nature; that is, they reword certain rules for grammar and
    clarity, they repeal some unnecessary or overly burdensome rules,
    and they reflect recent legislative changes in election law.

    In addition to those more-technical amendments, I adopted a rule
    that clarifies the General Assembly’s mandate to permit electronic
    transmission of ballots to and from military and overseas citizens.
    Unfortunately, there are some who do not want members of the
    military, their family members, military contractors, missionaries,
    and other Coloradans abroad to have the same ability to vote that
    you and I have. Those of us in Colorado have the ability to study
    the issues and candidates and then turn in our ballots after
    reviewing what’s on them for several weeks. That way, we can make
    informed choices.

    To permit these military and overseas voters the same rights, the
    General Assembly adopted a law in 2006 permitting electronic ballot
    transmission for this limited number of voters and then readopted it
    in 2011. Let me be clear: My rule puts some previously nonexistent
    guardrails on the legislature’s electronic transmission policy. The
    General Assembly adopted the law, not me. And I’m required to
    construe the law so that every eligible voter may vote — in fact,
    that’s a specific requirement of Colorado law.

    Not surprisingly, a handful of elections activists used this
    most-recent rulemaking to rail against what they term “Internet
    voting.” But what does surprise me is seeing members of the General
    Assembly, past and present, make misinformed statements and greatly
    exaggerate the purpose and effect of the new rule. Despite the fact
    that my rule actually narrows the application of electronic
    transmission, the naysayers continue to falsely claim that I’m
    expanding Internet voting and that I’m ignoring the advice of
    experts in the field. I have two responses.

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,internet voting 
<http://electionlawblog.org/?cat=49>,military voting 
<http://electionlawblog.org/?cat=48>


    “Legislature at impasse over how to draw Florida’s congressional
    districts” <http://electionlawblog.org/?p=75493>

Posted onAugust 21, 2015 7:54 am 
<http://electionlawblog.org/?p=75493>byRick Hasen 
<http://electionlawblog.org/?author=3>

Tampa Bay Times 
<http://www.tampabay.com/news/politics/stateroundup/legislature-at-impasse-over-how-to-draw-floridas-congressional-districts/2242151>:

    A divide over how to shape Tampa Bay’s congressional districts is
    creating uncertainty over whether the Legislature will be able to
    finish its job in a court-ordered special session on time.

    While a legislative impasse is hardly new in the recent political
    dynamics of the House and the Senate, the latest breakdown is
    complicated by the fact that they are under a Florida Supreme Court
    order to draw new districts because the last two attempts failed to
    produce a constitutionally sound map.

    What happens if they don’t hit their noon Friday deadline to pass
    identical redistricting maps? Even legislative leaders are uncertain
    about the next step.

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Posted inredistricting <http://electionlawblog.org/?cat=6>


    “Documents reveal secret Florida Senate process to draw district
    maps” <http://electionlawblog.org/?p=75491>

Posted onAugust 21, 2015 7:51 am 
<http://electionlawblog.org/?p=75491>byRick Hasen 
<http://electionlawblog.org/?author=3>

Tampa Bay Times 
<http://www.tampabay.com/news/politics/stateroundup/documents-reveal-secret-florida-senate-process-to-draw-district-maps/2242077>:

    The shadow redistricting process that brought down the congressional
    map also was in full swing in the state Senate’s efforts to redraw
    its own districts in 2011 and 2012, depositions and email documents
    submitted as part of a court case revealed.

    The documents, filed Wednesday in Leon County Circuit Court as part
    of a lawsuit over the Senate map, show that Republican operatives
    faked “public” submissions, possessed draft Senate maps more than a
    month before senators and submitted Republican-leaning maps that
    matched pieces that became the foundation of the adopted Senate
    redistricting plan.

    The same tactics emerged in the congressional redistricting trial
    that led to the Florida Supreme Court ordering the maps be redrawn
    in a special session that ends this week.

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Posted inredistricting <http://electionlawblog.org/?cat=6>


    “Maybe This Time Really Is Different”
    <http://electionlawblog.org/?p=75489>

Posted onAugust 21, 2015 7:47 am 
<http://electionlawblog.org/?p=75489>byRick Hasen 
<http://electionlawblog.org/?author=3>

Norm Ornstein 
<http://www.theatlantic.com/politics/archive/2015/08/maybe-this-time-really-is-different/401900/>:

    So is anything really different this time? I think so. First,
    because of the amplification of rage against the machine by social
    media, and the fact that Barack Obama has grown stronger and more
    assertive in his second term while Republican congressional leaders
    have become more impotent. The unhappiness with the establishment
    and the desire to stiff them is much stronger. Second, the views of
    rank-and-file Republicans on defining issues like immigration have
    become more consistently extreme—a majority now agree with virtually
    every element of Trump’s program, including expelling all illegal
    immigrants.

    Third, unlike in 2012, when Mitt Romney was the clear frontrunner
    and the only serious establishment presidential candidate, and all
    the pretenders were focused on destroying each other to emerge as
    his sole rival, this time there are multiple establishment
    candidates with no frontrunner, including Jeb Bush, Scott Walker,
    Marco Rubio, John Kasich, and Chris Christie. And each has
    independent financing, with enough backing from wealthy patrons to
    stay in the race for a long time, splitting the
    establishment-oriented vote. The financing, of course, raises point
    four: We are in a brave new world of campaign finance, where no one
    candidate can swamp the others by dominating the money race. When
    establishment nemesis Ted Cruz announced his campaign, he had $38
    million in “independent” funds within a week, $36 million of it from
    four donors. There is likely more where that came from. Some
    candidates may not find any sugar daddies, or may find that their
    billionaires are fickle at the first sign of weakness. But far more
    candidates than usual will have the financial wherewithal to stick
    around—and the more candidates stick around, the less likely that
    any single one will pull into a commanding lead or sweep a series of
    primaries, and thus the more reason to stick around.

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Posted inUncategorized <http://electionlawblog.org/?cat=1>


    “Another Way to Mask Super Rich Donors”
    <http://electionlawblog.org/?p=75487>

Posted onAugust 21, 2015 7:43 am 
<http://electionlawblog.org/?p=75487>byRick Hasen 
<http://electionlawblog.org/?author=3>

Bloomberg 
<http://www.bloomberg.com/politics/articles/2015-08-21/another-way-to-mask-super-rich-donors?cmpid=BBD082115_POL>:

    In January, Ted Cruz’s quest for the presidency got help from a
    limited liability company called V3 231. The LLC was listed as the
    source of a $250,000 donation to a super PAC supporting the
    conservative Republican senator from Texas. For anyone wondering
    what V3 231 is, or who controls it, there were few clues. A lawsuit
    filed in federal court mentions the company once owned a hotel in
    Brooklyn, N.Y. A search on the Internet reveals the name of the
    hotel’s now defunct developer. One of the developer’s former
    executives, reached on his mobile phone, says another man controls
    the LLC. That guy’s name, the former executive says, is Ben Nash.

    Nash was a 17-year-old yeshiva student from Brooklyn when he
    discovered a knack for selling cell phones. He dropped out of school
    and eventually made a fortune reselling used or surplus phones. His
    company, PCS Wireless, is targeting $1 billion in sales this year,
    according to Business Insider. Now 32, Nash has grown wealthy enough
    to dabble in Brooklyn real estate and philanthropy. He picks up the
    phone right away when reached at his headquarters in suburban New
    Jersey. He allows that he had dinner with Cruz a few months back,
    but he says he doesn’t think he gave the candidate as much as
    $250,000. “We give to a lot of charity over here,” he says. He ends
    the call promising to investigate. “I do want to check, for my own
    personal interest.”

    The next day, Nash’s spokesman, Robert Barletta, confirms that Nash
    was behind the $250,000 donation. In an e-mail, Barletta calls the
    donation “transparent and fully within federal campaign finance
    laws” and motivated by Cruz’s support for Israel.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>


    “Audit finds no major problems with Wisconsin elections board”
    <http://electionlawblog.org/?p=75485>

Posted onAugust 21, 2015 7:37 am 
<http://electionlawblog.org/?p=75485>byRick Hasen 
<http://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel 
<http://www.jsonline.com/news/statepolitics/audit-finds-no-major-problems-with-wisconsin-elections-board-b99560936z1-322409241.html>:

    An audit released Thursday looking into how Wisconsin’s nonpartisan
    elections and ethics board handles complaints found no major
    problems, leading the panel’s director to say it should put to rest
    concerns about its operations even as Republicans andGov. Scott
    Walker
    <http://www.jsonline.com/news/statepolitics/scott-walker-290106981.html>plan
    major overhauls.

    The nonpartisan Legislative Audit Bureau report was limited to
    previously confidential records related to nearly 1,900 complaints
    filed with the Government Accountability Board between 2010 and 2013.

    The audit had two recommendations: that the board consistently
    resolve complaints in a timely manner and that staff consistently
    provide the board with the names of three people who can be hired to
    work as special investigators.

    Board director Kevin Kennedy, under fire by Republican lawmakers,
    said the recommendations were minor and consistent with the agency’s
    existing practices.

    The report shows that the six retired judges on the board are
    engaged as they review material presented by staff, Kennedy said in
    a written statement.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,election 
administration <http://electionlawblog.org/?cat=18>


    “Lawrence Lessig: Running on Empty Campaign Finance Reform”
    <http://electionlawblog.org/?p=75483>

Posted onAugust 21, 2015 7:26 am 
<http://electionlawblog.org/?p=75483>byRick Hasen 
<http://electionlawblog.org/?author=3>

Steve Klein blog 
<https://www.pillaroflaw.org/index.php/blog/entry/lawrence-lessig-running-on-empty-campaign-finance-reform>.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>


    Correcting E.J. Dionne’s Legal Mistake
    <http://electionlawblog.org/?p=75481>

Posted onAugust 20, 2015 1:53 pm 
<http://electionlawblog.org/?p=75481>byRichard Pildes 
<http://electionlawblog.org/?author=7>

As I assume many readers of this blog noticed right away, E.J. Dionne 
wrongly described part of the 5th Circuit’s decision on Texas’ voter ID 
law in his recent piece,here 
<https://www.washingtonpost.com/opinions/no-retreat-on-voting-rights/2015/08/19/f0339280-46a0-11e5-846d-02792f854297_story.html>, 
on voting rights.  While correctly noting that the Court found the law 
to violate Section 2 of the VRA, he also wrote that the Court had found 
the law to be a poll tax as well.  This turns the Court’s holding inside 
out:  while the District Court did find the law to be a poll tax, the 
5th Circuit specifically reversed that conclusion and held that the law 
was/not/a poll tax. This is of some importance, beyond the importance of 
reporting the law correctly, because one of the arguments that has 
frequently been made about voter ID laws, by both litigants and among 
academics, at least by Bruce Ackerman, is that these kind of laws are 
unconstitutional poll taxes.  Particularly in light of the fact that the 
5th Circuit was nonetheless receptive to the plaintiffs’ claim under 
Section 2, I expect this decision will lead to the poll tax arguments 
playing a much more minor role, if they are pressed at all, in other 
cases going forward.

I had assumed someone else would have pointed out this mistake by now, 
but there is no correction in the Washington Post online version of the 
story, and I would not want other journalists or anyone else to repeat 
Dionne’s mistake, so I thought I would flag it here in hopes the story 
will be corrected.

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Posted invoter id <http://electionlawblog.org/?cat=9>


    “End Citizens United PAC wants to make its name a reality”
    <http://electionlawblog.org/?p=75478>

Posted onAugust 20, 2015 1:02 pm 
<http://electionlawblog.org/?p=75478>byRick Hasen 
<http://electionlawblog.org/?author=3>

MSNBC: 
<http://www.msnbc.com/msnbc/end-citizens-united-pac-wants-make-its-name-reality>

    The group plans on setting up an independent expenditure arm
    sometime early next year to financially back the candidates through
    initiatives including television ads, direct mailers and polling.

    While End Citizens United also hopes to help enact campaign finance
    reforms on the local and state level, its main objective of passing
    a constitutional amendment to overturn the 2010 Supreme Court
    decision is being met with some skepticism by campaign finance
    experts. A constitutional amendment, after all, must win consent
    from two-thirds of the Senate and the House, in addition to being
    ratified by three-fourths of states.

    “It’s a really high bar to for a constitutional amendment,” said
    John Wonderlich, policy director at the Sunlight Foundation, a
    non-partisan group that advocates for government transparency. “It’s
    an uphill battle for people who choose that path.”

    That’s putting it mildly. America hasn’t passed a single
    Constitutional amendment since 1992. And Washington has gotten
    exponentially more partisan since.

    Rick Hasen, a campaign finance regulation expert and professor of
    law and political science at UC-Irvine School of Law, put it in more
    stark terms. “Let’s say the group raised $100 million — the chances
    that even that amount of money to get a constitutional amendment
    passed by electing some sympathetic members of Congress is a pipe
    dream.” He said a greater likelihood of getting the law changed is
    confirming a new Supreme Court justice — when the time comes — who
    could shift the balance of the court.

    But, Hasen argued, groups like End Citizens United do serve a
    purpose in “continuing with the public awareness of the Supreme
    Court’s decision and it keeps political pressure on both the Supreme
    Court and other political actors to not make things worse.”

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>


    Odd Claim that Effort to Amend Constitution to Eliminate Birthright
    Citizenship Would Be Unconstitutional
    <http://electionlawblog.org/?p=75473>

Posted onAugust 20, 2015 12:39 pm 
<http://electionlawblog.org/?p=75473>byRick Hasen 
<http://electionlawblog.org/?author=3>

Cristian Farias 
<http://www.huffingtonpost.com/entry/republicans-birthright-citizenship_55d4934be4b07addcb44c96a>for 
HuffPo:

    It turns out that an amendment aiming to change the Constitution to
    end birthright citizenship for the children of immigrants — a move
    that squarely targets Latinos — could theoretically be found
    unconstitutional long before it could make it into the document in
    the first place. The same would be true for aRepublican-backed bill
    <https://www.congress.gov/bill/114th-congress/house-bill/140/cosponsors> with
    a similar goal that’s pending in Congress.

    The reason these proposals could be found unconstitutional is rooted
    in the very thing Republicans are attacking: the 14th Amendment of
    the U.S. Constitution.

    Because for all theprovisions and principles
    <https://www.law.cornell.edu/anncon/html/amdt14toc_user.html>that
    the 14th Amendment stands for — and birthright citizenship is only
    one of them — one of the amendment’s cornerstones is its promise of
    equal treatment for everyone.

There’s an update/correction to the piece which reads as follows:

    /Language has been changed to reflect that an effort to change the
    Constitution to revoke birthright citizenship could in theory be
    found unconstitutional before any proposed legislation became an
    official part of the document./

    [The original language said: “It turns out that the very idea of
    amending the Constitution to end birthright citizenship for the
    children of immigrants — a move that squarely targets Latinos
    —*would probably*be found unconstitutional” [my emphasis).]

I don’t understand this at all. Although there is some literature 
suggesting that in theory there could be “unconstitutional 
constitutional amendments,” what Farias seems to be suggesting is that 
if someone in Congress proposed a constitutional amendment to overturn 
the birthright citizenship provision of the 14th Amendment, that someone 
could go to court and stop that proposed amendment from being circulated 
on grounds it would be rooted in animus and a violation of the 14th 
Amendment.

I find this quite hard to imagine. First, there would be great 
justiciability questions to such a claim before it even passed. Who 
would have standing to challenge? Is the claim ripe?

And on the merits, I cannot believe that if this country actually passed 
such a constitutional amendment (which thankfully would not happen in 
any case), that the Supreme Court would say it is invalid because it 
goes against the very amendment that the amendment overturned. As Derek 
Muller tweeted today, it is like saying the amendment overruling 
prohibition would be unconstitutional because of an existing amendment 
allowing prohibition. And I don’t think eliminating birthright 
citizenship would be such a profound change to the constitutional 
structure so as to be seen as an improper amendment to the Constitution.

Anyway, it was an odd story with a correction which seems to weaken the 
case.

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Posted inUncategorized <http://electionlawblog.org/?cat=1>


    “Bob McDonnell Files #SCOTUS Emergency Application to Stay
    Mandate/Release on Bail Pending Cert”
    <http://electionlawblog.org/?p=75471>

Posted onAugust 20, 2015 12:32 pm 
<http://electionlawblog.org/?p=75471>byRick Hasen 
<http://electionlawblog.org/?author=3>

Josh Blackman reports 
<http://joshblackman.com/blog/2015/08/20/bob-mcdonnell-files-scotus-emergency-application-to-stay-mandaterelease-on-bail-pending-cert/>onthis 
emergency application 
<https://www.scribd.com/doc/275357151/McDonnell-Stay-Petition>.

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Posted inbribery <http://electionlawblog.org/?cat=54>


    Movement to Ease California Top Two?
    <http://electionlawblog.org/?p=75469>

Posted onAugust 20, 2015 12:30 pm 
<http://electionlawblog.org/?p=75469>byRick Hasen 
<http://electionlawblog.org/?author=3>

Richard Winger 
<http://ballot-access.org/2015/08/20/independent-voters-network-and-california-forward-host-all-day-meeting-in-california-top-two/>reporting 
from an event on top-two that I unfortunately had to miss because of 
teaching obligations:

    During the question period, Paula Lee, an activist in Californians
    for Electoral Reform, which advocates alternate voting systems such
    as proportional representation, suggested an end to single-member
    districts. Former State Senator Steve Peace then appeared at the
    podium and said he now supports converting the California system to
    a top-three system in which Instant Runoff Voting would be used in
    the general election. This is a significant development, because
    Peace is influential and has been one of the founders of the top-two
    system in California.

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Posted inalternative voting systems 
<http://electionlawblog.org/?cat=63>,political parties 
<http://electionlawblog.org/?cat=25>,primaries 
<http://electionlawblog.org/?cat=32>


    “Google could ‘rig the 2016 election,’ researcher says”
    <http://electionlawblog.org/?p=75467>

Posted onAugust 20, 2015 10:17 am 
<http://electionlawblog.org/?p=75467>byRick Hasen 
<http://electionlawblog.org/?author=3>

CNN 
<http://money.cnn.com/2015/08/20/technology/google-2016-election/index.html?category=home>:

    The world’s most-used search engine is so powerful and
    nationalelections are so tight
    <http://money.cnn.com/2015/08/06/news/economy/2016-democratic-victory-moodys-analystics/index.html?iid=EL>,
    that even a tiny tweak in Google’s (GOOGL
    <http://money.cnn.com/quote/quote.html?symb=GOOGL&source=story_quote_link>,Tech30
    <http://money.cnn.com/technology/tech30/index.html?iid=EL>) secret
    algorithm could swing the 2016 presidential election, according to
    Robert Epstein, senior research psychologist at the American
    Institute for Behavioral Research and Technology.In anop-ed on
    Politico.com
    <http://www.politico.com/magazine/story/2015/08/how-google-could-rig-the-2016-election-121548.html>,
    Epstein said that he and a team of researchers studied behavior in
    undecided voters who had been exposed to rigged search results. By
    displaying results that shone a more favorable light on a particular
    candidate the researchers could shift opinion towards that favored
    candidate.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>


    “OIG report recommends USPS develop VBM strategy”
    <http://electionlawblog.org/?p=75465>

Posted onAugust 20, 2015 10:15 am 
<http://electionlawblog.org/?p=75465>byRick Hasen 
<http://electionlawblog.org/?author=3>

That’s the lead story 
<http://www.electionline.org/index.php/electionline-weekly>in this 
week’s Electionline Weekly.

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Posted inabsentee ballots <http://electionlawblog.org/?cat=53>,election 
administration <http://electionlawblog.org/?cat=18>

-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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