[EL] ELB News and Commentary 8/18/17

Fri Aug 18 07:34:35 PDT 2017

“Speech in America is fast, cheap and out of control”<http://electionlawblog.org/?p=94346>
Posted on August 18, 2017 7:32 am<http://electionlawblog.org/?p=94346> by Rick Hasen<http://electionlawblog.org/?author=3>
I have written this oped<http://www.latimes.com/opinion/op-ed/la-oe-hasen-cheap-speech-democracy-20170818-story.html> for Sunday’s Los Angeles Times Opinion section. It begins:
The Internet and social media did not create white supremacist movements in the United States, such as the hate groups that rallied in Charlottesville, Va<http://www.latimes.com/opinion/topoftheticket/la-na-tt-charlottesville-extremists-20170815-story.html>., last weekend to deadly results. Nor did the Internet create Donald Trump<http://www.latimes.com/topic/politics-government/donald-trump-PEBSL000163-topic.html>, who defended the Nazi protesters as “very fine people<http://abcnews.go.com/Politics/trump-lashes-alt-left-charlottesville-fine-people-sides/story?id=49235032>.” Trump was a demagogue long before he became @realDonaldTrump<https://twitter.com/realDonaldTrump> on Twitter. And there was plenty of “fake news” before there was Facebook.
The rise of what we might call “cheap speech” has, however, fundamentally altered both how we communicate and the nature of our politics, endangering the health of our democracy. The path back to a more normal political scene will not be easy.
Another snippet:
As Trump’s presidency should make obvious, we do not want the government to have the power to ban speech it dislikes — what the White House considers “fake news.” 1st Amendment protections rightfully would prevent such legislation, anyway.
Still, in the era of cheap speech, some shifts in 1st Amendment doctrine seem desirable to assist citizens in ascertaining the truth. The courts should not stand in the way of possible future laws aimed at requiring social media sites to identify and police false political advertising, for instance.
Of course a new conservative Supreme Court is more likely to make things worse than better. It might hold, for example, that it violates the 1st Amendment to bar fake campaign news distributed over social media by foreign governments. Or it might strike down laws that help voters figure out who is paying for political activity (under the dubious argument that transparency measures violate a right to anonymity).
Ultimately, nongovernmental actors may be best suited to counter the problems created by cheap speech. Tech companies such as Facebook, Google and Twitter can assist audiences in ferreting out the truth. Consumer pressure may be necessary to get there, but it is not clear if consumers or shareholders<http://sanfrancisco.cbslocal.com/2017/06/02/zuckerberg-shareholder-fake-news-transparency/> will have the power to move dominant market players who do not want to be moved.
This piece is based on my forthcoming law review article, “Cheap Speech and What It Has Done (to American Democracy)<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3017598>.”
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Posted in campaigns<http://electionlawblog.org/?cat=59>, social media and social protests<http://electionlawblog.org/?cat=58>, The Voting Wars<http://electionlawblog.org/?cat=60>

Pippa Norris’s “Strengthening Electoral Integrity” Out In August<http://electionlawblog.org/?p=94344>
Posted on August 18, 2017 7:27 am<http://electionlawblog.org/?p=94344> by Rick Hasen<http://electionlawblog.org/?author=3>
Looking forward to reading this last one<http://www.cambridge.org/us/academic/subjects/politics-international-relations/comparative-politics/strengthening-electoral-integrity?format=PB#M83aLIshKoJR2jZM.97> of the trilogy. Book descriiption:
Today a general mood of pessimism surrounds Western efforts to strengthen elections and democracy abroad. If elections are often deeply flawed or even broken in many countries around the world, can anything be done to fix them? To counter the prevailing ethos, Pippa Norris presents new evidence for why programs of international electoral assistance work. She evaluates the effectiveness of several practical remedies, including efforts designed to reform electoral laws, strengthen women’s representation, build effective electoral management bodies, promote balanced campaign communications, regulate political money, and improve voter registration. Pippa Norris argues that it would be a tragedy to undermine progress by withdrawing from international engagement. Instead, the international community needs to learn the lessons of what works best to strengthen electoral integrity, to focus activities and resources upon the most effective programs, and to innovate after a quarter century of efforts to strengthen electoral integrity.
Offered using link above at a discount until Sept. 30 with code “Norris17” at checkout.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Marc Elias Interviewed on “Take Care” Podcast<http://electionlawblog.org/?p=94342>
Posted on August 18, 2017 7:22 am<http://electionlawblog.org/?p=94342> by Rick Hasen<http://electionlawblog.org/?author=3>
Listen<https://takecareblog.com/blog/versus-trump-the-voting-wars-interview-with-marc-elias>.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“California Panel Changes Donor Rule as Democrat Faces Recall”<http://electionlawblog.org/?p=94340>
Posted on August 18, 2017 7:19 am<http://electionlawblog.org/?p=94340> by Rick Hasen<http://electionlawblog.org/?author=3>
AP: <https://www.usnews.com/news/best-states/california/articles/2017-08-17/california-panel-changes-donor-rule-as-democrat-faces-recall>
California<https://www.usnews.com/news/best-states/california>‘s political watchdog moved forward Thursday with a controversial change to a campaign finance rule that will help a Democratic state senator facing a recall.
The Fair Political Practices Commission voted 3-1 Thursday to adopt the change, which was requested by a lawyer for Senate Democrats.
The commission has long had a rule that politicians can only contribute $4,400 from their campaign accounts to help lawmakers facing a recall. Commissioners decided to lift the restriction as Democratic Sen. Josh Newman of Fullerton fights a potential recall.
That matches the rule for individual contributors to recall campaigns, who can give without limit.
Two Republican commissioners and one Democrat agreed with Democratic lawyer Richard Rios, who said the longstanding guidance was wrong.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, recall elections<http://electionlawblog.org/?cat=11>

“Charlottesville and the Problem of Donald Trump’s Constitution”<http://electionlawblog.org/?p=94338>
Posted on August 18, 2017 7:15 am<http://electionlawblog.org/?p=94338> by Rick Hasen<http://electionlawblog.org/?author=3>
Bob Bauer, with a note on Pence-Kobach:<https://lawfareblog.com/charlottesville-and-problem-donald-trumps-constitution>
Trump has not limited himself to waging this war of exclusion on a merely rhetorical front. His Vice President is managing the Presidential Advisory Commission on Election Integrity, a major initiative to root out the “voter fraud” that the president insists robbed him of a popular vote victory. “There are millions of [fraudulent] votes, in my opinion,” he proclaimed<http://fortune.com/2017/01/25/trump-investigation-voter-fraud-claims/>,  and “of those votes cast, none of them come to me. None of them come to me.”  Of course, they “came” out of “certain areas”<http://www.philly.com/philly/news/politics/20161009_Despite_Trump_s_warning_of_fraud__there_s_little_sign_of_interest_in_poll-watching.html> in urban areas, such as in Pennsylvania and Michigan. This corruption of the political community was the one way—sometimes, he suggested, the only way—he could have lost, and he declared<https://www.theatlantic.com/politics/archive/2016/10/trumps-rigged-game/504299/> that if he did lose, we would “have a whole different country and it’s never going to come back.”
Now this Commission, headed by Pence, proposes to collect data on voters in all jurisdictions and store it on a White House server, scouring it for “fraud” in “certain areas” and striving to restructure, by narrowing along racial and ethnic lines, the eligible electorate. Ross Douthat has written<https://www.nytimes.com/2017/08/16/opinion/trump-charlottesville-civil-war.html?mcubz=1&_r=0> that we cannot make too much of this anti-fraud program, with its central but not exclusive emphasis on onerous and arbitrary personal identification requirements. It is “more incremental than existential: Voter-ID laws are not Jim Crow,” he writes.  He stumbles badly on this analogy. However far one might or might not take any comparison to Jim Crow, it remains the case that the ID laws and other franchise-restrictive measures of recent years have erected new discriminatory barriers to the right to vote. Trump is openly eager for more of the same and working to bring it about.
Trump’s defenders insist that any election reform must include reasonable protections against ineligible voting. Few will disagree. But this misses the point.  Trump’s goal in setting up the Commission is far from anything recognizable as reform. He has broken with a string of bipartisan programs supported by election administration professionals and has substituted in their place a sham process with the different aim of restricting access to the polls of a targeted population of voters, primarily in minority communities. It is well known whom he has in mind and where he believes them to be located: he has confirmed his views at rallies and in tweets, and his audience understands him perfectly.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

Court Rules in Favor of White Plain Petition Signatories Who Used “W.P.” on Candidate Petitions<http://electionlawblog.org/?p=94336>
Posted on August 17, 2017 3:14 pm<http://electionlawblog.org/?p=94336> by Rick Hasen<http://electionlawblog.org/?author=3>
BAN<http://ballot-access.org/2017/08/17/new-york-supreme-court-explains-why-petition-signatures-with-abbreviation-for-name-of-city-are-valid/> with a link to the ruling.
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Posted in ballot access<http://electionlawblog.org/?cat=46>

“Back to School; University of Minnesota adds Undergraduate Certificate in Election Administration”<http://electionlawblog.org/?p=94334>
Posted on August 17, 2017 10:25 am<http://electionlawblog.org/?p=94334> by Rick Hasen<http://electionlawblog.org/?author=3>
Doug Chapin<http://www.electionline.org/index.php/electionline-weekly> with exciting news.
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Posted in election administration<http://electionlawblog.org/?cat=18>, pedagogy<http://electionlawblog.org/?cat=23>

“At Senator Menendez’s Trial, Stakes Are High for Democrats”<http://electionlawblog.org/?p=94332>
Posted on August 17, 2017 10:23 am<http://electionlawblog.org/?p=94332> by Rick Hasen<http://electionlawblog.org/?author=3>
Shane Goldmacher<https://www.nytimes.com/2017/08/17/nyregion/senator-robert-menendez-trial.html> for the NYT:
If Mr. Menendez, a Democrat, is convicted and then expelled from the United States Senate by early January, his replacement would be picked by Gov. Chris Christie, the Republican governor of New Jersey and an ally of President Trump.
That scenario — where Mr. Menendez’s interim replacement would more than likely be a Republican — would have immediate and far-reaching implications: The Republicans would be gifted a crucial extra vote just as the party remains a single senator shy of repealing President Obama’s signature health care law. Those potential consequences only heighten the drama around the first federal bribery charges leveled against a sitting senator in a generation<mailto:https://www.nytimes.com/2015/04/02/nyregion/senator-robert-menendez-indicted-on-corruption-charges.html%3Fmcubz=0>.
“This one vote, this one vote — if he’s convicted or does a plea deal — could change the course of history on Obamacare. It’s remarkable,” said Steve Lonegan, a New Jersey Republican who unsuccessfully ran<https://www.nytimes.com/2013/08/28/nyregion/for-long-shot-seeking-new-jersey-senate-seat-no-filter.html> for Senate three years ago.
He added, “That’s a big ‘if.’”
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>

“Neil Gorsuch Speech at Trump Hotel Raises Ethical Questions”<http://electionlawblog.org/?p=94330>
Posted on August 17, 2017 10:13 am<http://electionlawblog.org/?p=94330> by Rick Hasen<http://electionlawblog.org/?author=3>
Adam Liptak<https://www.nytimes.com/2017/08/17/us/politics/gorsuch-speech-trump-hotel-ethics.html?smid=tw-share&_r=0> for the NYT.
This piece quotes my Celebrity Justice piece in the Green Bag<http://www.greenbag.org/v19n2/v19n2_articles_hasen.pdf>.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

--
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
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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