[EL] ELB News and Commentary 11/17/16

Thu Nov 17 08:10:06 PST 2016

“White House Confirms Pre-Election Warning to Russia Over Hacking”<http://electionlawblog.org/?p=89338>
Posted on November 17, 2016 8:04 am<http://electionlawblog.org/?p=89338> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<http://www.nytimes.com/2016/11/17/us/politics/white-house-confirms-pre-election-warning-to-russia-over-hacking.html?ref=politics>
Over the past month, President Vladimir V. Putin<http://topics.nytimes.com/top/reference/timestopics/people/p/vladimir_v_putin/index.html?inline=nyt-per> of Russia has received two starkly different messages about hacking into American computer networks from the current and future presidents of the United States: Don’t you dare, and don’t worry, we’re not even sure it was you.
The White House confirmed in a statement on Wednesday that eight days before the presidential election, the United States “contacted the Russian government directly regarding malicious cyberactivity” that was “targeting U.S. state election-related systems.” It sent the message over a rarely used system: a hotline connecting the Nuclear Risk Reduction Centers in both countries, which they had agreed three years ago could also be employed to deal with major cyberincidents.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>

“The electoral college badly distorts the vote. And it’s going to get worse.”<http://electionlawblog.org/?p=89334>
Posted on November 17, 2016 7:56 am<http://electionlawblog.org/?p=89334> by Rick Hasen<http://electionlawblog.org/?author=3>
Katy Collin<https://www.washingtonpost.com/news/monkey-cage/wp/2016/11/17/the-electoral-college-badly-distorts-the-vote-and-its-going-to-get-worse/> for the Monkey Cage.
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Posted in electoral college<http://electionlawblog.org/?cat=44>

“The Academy, Campaign Finance, and Free Speech under Fire”<http://electionlawblog.org/?p=89332>
Posted on November 17, 2016 7:54 am<http://electionlawblog.org/?p=89332> by Rick Hasen<http://electionlawblog.org/?author=3>
Brad Smith has posted this draft <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2865773> on SSRN (forthcoming, Journal of Law and Policy).  Here is the abstract:
This short essay, part of a symposium on “Free Speech Under Fire” at Brooklyn Law School, argues that academic efforts to fit campaign finance restrictions within the rubric of the First Amendment have distorted First Amendment doctrine, and contributed to a decline in respect for free speech generally. The essay briefly reviews and critiques recent scholarship by Robert Post (“Citizens Divided”), Richard Hasen (“Plutocrats United”), Larry Lessig, and Zephyr Teachout.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

“Facebook fake-news writer: ‘I think Donald Trump is in the White House because of me’”<http://electionlawblog.org/?p=89329>
Posted on November 17, 2016 7:45 am<http://electionlawblog.org/?p=89329> by Rick Hasen<http://electionlawblog.org/?author=3>
This is a wow-wow-wow read.<https://www.washingtonpost.com/news/the-intersect/wp/2016/11/17/facebook-fake-news-writer-i-think-donald-trump-is-in-the-white-house-because-of-me/>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Drain the Swamp, Indeed: Ethics Reform and the Next Administration”<http://electionlawblog.org/?p=89327>
Posted on November 17, 2016 7:38 am<http://electionlawblog.org/?p=89327> by Rick Hasen<http://electionlawblog.org/?author=3>
Ciara Torres-Spelliscy oped.<http://www.truth-out.org/opinion/item/38394-drain-the-swamp-indeed>
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>, lobbying<http://electionlawblog.org/?cat=28>

“Illinois advances effort to automatically register two million voters”<http://electionlawblog.org/?p=89325>
Posted on November 17, 2016 7:26 am<http://electionlawblog.org/?p=89325> by Rick Hasen<http://electionlawblog.org/?author=3>
Think Progress.<https://thinkprogress.org/breaking-illinois-will-automatically-register-two-million-voters-e9c73cc7ae0f#.6va67cmps>
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Posted in voter registration<http://electionlawblog.org/?cat=37>

“Trump Team Sets Broader Limits on Lobbying by Former Staff”<http://electionlawblog.org/?p=89322>
Posted on November 17, 2016 7:19 am<http://electionlawblog.org/?p=89322> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT reports<http://www.nytimes.com/2016/11/17/us/politics/aides-to-donald-trump-announce-curbs-on-lobbyists.html?_r=1>:
Mr. Trump’s lobbying ban will require administration members to agree that they will not lobby the federal government for five years after they leave service. Federal lobbying bans now last generally for one or two years, depending on the office.
Matthew T. Sanderson, a government ethics compliance lawyer who has worked on several Republican presidential campaigns, said Mr. Trump’s plan would expand so-called revolving-door restrictions.
“The devil is in the details,” he said. “But if it is as they described it, a five-year ban on becoming a federal lobbyist would constitute a real and significant measure to fight the revolving door that happens in Washington.”
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Posted in lobbying<http://electionlawblog.org/?cat=28>

“Republicans plan to ‘drain the swamp’ by gutting campaign finance laws”<http://electionlawblog.org/?p=89320>
Posted on November 17, 2016 7:16 am<http://electionlawblog.org/?p=89320> by Rick Hasen<http://electionlawblog.org/?author=3>
Vox reports.<http://www.vox.com/policy-and-politics/2016/11/17/13626082/republicans-campaign-finance>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Issa seeks to challenge ballots in close race”<http://electionlawblog.org/?p=89318>
Posted on November 16, 2016 4:19 pm<http://electionlawblog.org/?p=89318> by Rick Hasen<http://electionlawblog.org/?author=3>
San Diego Union-Tribune:<http://www.sandiegouniontribune.com/news/elections/sd-me-issa-challenge-20161116-story.html>
Rep. Darrell Issa said in a fundraising appeal<https://www.darrellissa.com/2016/11/16/3406/> Wednesday that he is mounting an effort to challenge the legality of some ballots still being counted in his tight re-election race .
Issa said that he leads Democrat Doug Applegate by just under 2 percentage points but that he expects that lead to shrink.
“I won, but now the liberals are trying to steal the election,” the Vista Republican says in the message. “The truth is, there are enough ballots left to be counted that I could still lose. I am optimistic that’s not going to happen though,” he continued.
It’s a change in tone from last week when Issa virtually declared victory, expressing confidence his lead would hold.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>
“Viral Fake Election News Outperformed Real News On Facebook In Final Months Of The US Election”<http://electionlawblog.org/?p=89316>
Posted on November 16, 2016 3:29 pm<http://electionlawblog.org/?p=89316> by Rick Hasen<http://electionlawblog.org/?author=3>
BuzzFeed:<https://www.buzzfeed.com/craigsilverman/viral-fake-election-news-outperformed-real-news-on-facebook?utm_term=.rkDLVjy37#.ke8NRq78Y>
In the final three months of the US presidential campaign, the top-performing fake election news stories on Facebook generated more engagement than the top stories from major news outlets such as the New York Times, Washington Post, Huffington Post, NBC News, and others, a BuzzFeed News analysis has found.
During these critical months of the campaign, 20 top-performing false election stories from hoax sites and hyperpartisan blogs generated 8,711,000 shares, reactions, and comments on Facebook.
Within the same time period, the 20 best-performing election stories from 19 major news websites generated a total of 7,367,000 shares, reactions, and comments on Facebook. (This analysis focused on the top performing link posts for both groups of publishers, and not on total site engagement on Facebook. For details on how we identified and analyzed the content, see the bottom of this post. View our data here<https://docs.google.com/spreadsheets/d/1ysnzawW6pDGBEqbXqeYuzWa7Rx2mQUip6CXUUUk4jIk/edit?usp=sharing>.)
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>, social media and social protests<http://electionlawblog.org/?cat=58>

“What’s next in sorting out close NC elections?”<http://electionlawblog.org/?p=89314>
Posted on November 16, 2016 3:27 pm<http://electionlawblog.org/?p=89314> by Rick Hasen<http://electionlawblog.org/?author=3>
News & Observer.<http://www.newsobserver.com/news/politics-government/state-politics/article115234058.html>
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Posted in election administration<http://electionlawblog.org/?cat=18>, recounts<http://electionlawblog.org/?cat=50>

“Richard Briffault: The “faithless” elector”<http://electionlawblog.org/?p=89312>
Posted on November 16, 2016 3:26 pm<http://electionlawblog.org/?p=89312> by Rick Hasen<http://electionlawblog.org/?author=3>
Over at Medium<https://medium.com/equal-citizens/richard-briffault-the-faithless-elector-ba7b50fc8ba1#.oqlohe516>, posted by Lessig.
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Posted in electoral college<http://electionlawblog.org/?cat=44>

“Rethinking Presidential Eligibility”<http://electionlawblog.org/?p=89310>
Posted on November 16, 2016 3:07 pm<http://electionlawblog.org/?p=89310> by Rick Hasen<http://electionlawblog.org/?author=3>
Gene Mazo has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2868555> on SSRN (forthcoming, Fordham Law Review).  Here is the abstract:
Throughout American history, several aspiring presidents have had their candidacies challenged for failing to meet the Constitution’s eligibility requirements. These challenges began in the 1880s, when Chester A. Arthur’s eligibility was disputed, and they continued into the twentieth century. In recent years, president eligibility challenges have become much more poignant. Moreover, recent eligibility challenges have not only been contested in the court of public opinion, but in the courts of law as well, where they have threatened the campaigns of several ambitious men. Although none of these challenges have ever been successful, they nonetheless have worked to sap presidential campaigns of valuable resources. This Essay examines several presidential eligibility challenges. It looks at the historic eligibility challenges confronted by Chester A. Arthur, Charles Evans Hughes, George Romney, Christian Herter, and Lowell Weicker, and at the more modern challenges confronted by John McCain, Barack Obama, and Ted Cruz. The literature on presidential eligibility traditionally has focused on discerning the meaning of the the Constitution’s Eligibility Clause, which enumerates the age, residency, and citizenship requirements that a U.S. president must satisfy before taking office. By contrast, very little of it examines how a challenge to a candidate’s eligibility impacts a presidential campaign. Nor does this literature offer many solutions for what Congress can do to respond to these disputes. This Essay partly seeks to fill this gap, and it offers a modest proposal. It calls on Congress to pass legislation defining exactly who qualifies to be a natural born citizen or, in the alternative, to implement procedural rules that would expedite presidential eligibility challenges for review to the U.S. Supreme Court.

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

--
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<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>
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