[EL] ELB News and Commentary 6/23/17

[Rick Hasen]

“Little movement on White House probe into voter fraud; No meetings yet; commissioners still being vetted”<http://electionlawblog.org/?p=93325>
Posted on June 22, 2017 9:10 pm<http://electionlawblog.org/?p=93325> by Rick Hasen<http://electionlawblog.org/?author=3>
CNN;<http://www.news4jax.com/news/politics/little-movement-on-white-house-probe-into-voter-fraud>
On Super Bowl Sunday this year, President Donald Trump told Fox News that Vice President Mike Pence<http://www.news4jax.com/topic/Mike%20Pence?entityid=3052445865&lang=en> would head a commission into voter fraud allegations — ones that he made, claiming that between three to five million people voted illegally in the 2016 election.
The commission was formed three months later, but it has yet to meet and there’s no date set to do so.But state-level commission members say if they were to get underway, Russia should be center stage.
More than one member of the White House<http://www.news4jax.com/topic/White%20House?entityid=83089&lang=en>‘s Election on Voter Integrity told CNN on Thursday that the group would not be doing its job if it did not examine possible interference by a Russian intelligence agency or a military intelligence agency in voting systems.
“If you know that there is an outside force that is trying to jimmy the door on the election process somehow, you would want to know about that,” said Matt Dunlap, Maine’s secretary of state and a member of the commission. “That includes the Russians, the Martians, I don’t care. It has to be part of the discussion.”
Dunlap said he has not heard from the White House about the commission since the May press release.
….
Dunlap said that he’s glad that the White House included him in the commission, but he thinks that the lack of movement so far may be intentional.
“If they have any dignity about this, they’ll stop meeting as a commission because I just don’t think we’re going to find very much,” he said. “It could be a realization that there’s not a lot there.”
EARLIER: My oped<http://www.pressherald.com/2017/05/24/commentary-dunlap-badly-mistaken-in-agreeing-to-serve-on-trump-voter-fraud-panel/> calling for Dunlap to not serve on the commission.
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Posted in election administration<http://electionlawblog.org/?cat=18>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


Politifact Rates “False” ‘Fox and Friends’ Ridiculous Claim about 5-7 Million Noncitizen Voters in 2016<http://electionlawblog.org/?p=93321>
Posted on June 22, 2017 8:57 pm<http://electionlawblog.org/?p=93321> by Rick Hasen<http://electionlawblog.org/?author=3>
Politifact:<http://www.politifact.com/florida/statements/2017/jun/22/ainsley-earhardt/following-trump-voter-fraud-allegations-claim-57-m/>
The claim made on Fox and Friends is based on an extrapolation of a controversial study that relied on a very small number of responses. Researchers involved in the underlying survey of voters have cautioned against using their data to reach conclusions about noncitizen voters.
We emailed a spokeswoman for Fox News and did not get a reply; however, the Washington Times article<http://www.washingtontimes.com/news/2017/jun/19/noncitizen-illegal-vote-number-higher-than-estimat/> showed that the information came from Just Facts<http://www.justfacts.com/>, a think tank that describes itself as conservative/libertarian and was founded by James D. Agresti<http://www.washingtontimes.com/topics/james-d-agresti/>, a mechanical engineer in New Jersey.
Agresti’s conclusions<http://www.justfacts.com/immigration.asp#_ftn1010> are based on data from a paper by Old Dominion University researchers who used data from the Cooperative Congressional Election Study<https://cces.gov.harvard.edu/>, or CCES. He multiplied the findings in that data with U.S. Census Bureau estimates of the noncitizen population to come up with a conclusion about the number of noncitizen voters nationwide.
It’s important to note that the CCES researchers have disputed the conclusions Old Dominion researchers reached about noncitizen voters.
Here’s how the studies unfolded: In 2008, the CCES surveyed 32,800 adults nationwide online about their political views. Respondents answered at least 100 questions before they made it to the citizenship question, one of the last questions asked.
The survey showed that 339 identified themselves as noncitizens — about 1 percent of the total respondents. Then of the 339 self-identified noncitizens, 39 of those claim to have voted, said Brian Schaffner, a political science professor at the University of Massachusetts Amherst, one of the main researchers.
That’s 39 respondents out of 32,800 people who are now being used to extrapolate millions of illegal voters. Schaffner has warned that with a subset that small, the responses might be unreliable.
“Survey respondents occasionally select the wrong response by accident—perhaps because they are rushing through and not reading the questions carefully, because they do not fully understand the terminology being used, or because they simply click on the wrong box on the page,” Schaffner wrote in a Politico<http://www.politico.com/magazine/story/2016/11/donald-trump-illegal-votes-evidence-debunked-214487> magazine article after the November election.
Subsequent CCES surveys provide more evidence that some respondents answered the question wrong. There were 20 respondents who identified themselves as citizens in 2010 but then in 2012 changed their answers to indicate that they were noncitizens, which Schaffer said is “highly unrealistic.”
In 2014, researchers at Old Dominion University<http://www.sciencedirect.com/science/article/pii/S0261379414000973> used the CCES data in 2008 and 2010, as well as voter records in 2008, to conclude that more than 14 percent of noncitizens indicated that they were registered to vote. Their best guess at the portion of noncitizens who voted was about 6.4 percent, or 1.2 million votes cast.
The researchers at CCES (including Schaffner; Stephen Ansolabehere<http://scholar.harvard.edu/sansolabehere/biocv>, a Harvard political scientist; and Samantha Luks<https://today.yougov.com/people/samluks/>, a statistician at YouGov) have criticized the methodology<https://www.washingtonpost.com/news/monkey-cage/wp/2016/10/19/trump-thinks-non-citizens-are-deciding-elections-we-debunked-the-research-hes-citing/?utm_term=.d66c55cbc163> used by Old Dominion.
They said it didn’t fully consider the possibility that people responded to the survey inaccurately.
“You are ignoring the measurement error in a very small group which is going to inflate those numbers,” Schaffner said, “then you assume this is a random sample of all noncitizens in the country, which it probably isn’t.”
More than 100 political scientists<https://assets.documentcloud.org/documents/3539975/Openletter.pdf> from universities and colleges wrote an open letter in January disputing the Old Dominion paper as evidence for Trump’s claim that millions of noncitizens voted.
MORE<http://www.huffingtonpost.com/entry/study-noncitizens-voting_us_59498b3ae4b0177d0b8a3412?ncid=engmodushpmg00000004> from HuffPo.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


“How Tinder Could Take Back the White House”<http://electionlawblog.org/?p=93319>
Posted on June 22, 2017 6:20 pm<http://electionlawblog.org/?p=93319> by Rick Hasen<http://electionlawblog.org/?author=3>
Yara Rodrigues Fowler and Charlotte Goodman fascinating NYT oped<https://www.nytimes.com/2017/06/22/opinion/how-tinder-could-take-back-the-white-house.html?smid=tw-share&_r=1>:
With the help of two software engineers, Erika Pheby and Kyle Buttner, we designed a chatbot, a smart computer program that deployed an adaptable script. In the two days ahead of the election earlier this month, the chatbot struck up conversations with thousands of young people between 18 and 25 years old on Tinder. The chatbot talked about politics, with the aim of getting voters to help oust the Conservative government. The results were amazing. Over 30,000 messages reached young people in key constituencies.
This is how it worked: People we recruited from Facebook and Twitter “lent” us their Tinder profiles, and the bot convinced Tinder that their profiles were in geographical locations where the vote was close. In these places, the proportion of 18-25-year-olds was high enough that they could swing the election — if they turned out at the national average. Using the photograph of the person who’d lent their profile, the program would automatically swipe “yes” on every user, and if someone swiped “yes” back, creating a “match,” the bot would ask about the user’s voting plans.If the user planned to vote for Labour (or whatever party best placed to beat the Conservatives), the bot sent a message with a link to the nearest polling station. If the user planned to vote for another progressive party, the bot asked if he or she would consider a tactical vote to beat the Tories, voting for the progressive party most likely to beat the Conservatives in their area. And if the user was voting for a right-wing party or was unsure, the bot sent a list of Labour policies, or a criticism of Tory policies. People who lent their profiles could jump in and chat at any time. And they did.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, social media and social protests<http://electionlawblog.org/?cat=58>


“Facebook to keep wraps on political ads data despite researchers’ demands”<http://electionlawblog.org/?p=93317>
Posted on June 22, 2017 6:02 pm<http://electionlawblog.org/?p=93317> by Rick Hasen<http://electionlawblog.org/?author=3>
Reuters reports.<http://www.reuters.com/article/us-usa-politics-facebook-idUSKBN19D1CN>
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Posted in campaigns<http://electionlawblog.org/?cat=59>, social media and social protests<http://electionlawblog.org/?cat=58>


Does the SCOTUS Decision to Hear WI Partisan Gerrymandering Case Mean J. Kennedy Won’t Retire Now?<http://electionlawblog.org/?p=93313>
Posted on June 22, 2017 3:21 pm<http://electionlawblog.org/?p=93313> by Rick Hasen<http://electionlawblog.org/?author=3>
That was my<https://www.theatlantic.com/politics/archive/2017/06/justice-kennedys-beauty-pageant/530790/> initial inclination but now I’m not so sure<https://twitter.com/rickhasen/status/878011296414810112>.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>


The Consequences of Gerrymandering<http://electionlawblog.org/?p=93308>
Posted on June 22, 2017 3:10 pm<http://electionlawblog.org/?p=93308> by Nicholas Stephanopoulos<http://electionlawblog.org/?author=12>
I wrote yesterday<http://electionlawblog.org/?p=93272> about my findings in a recent paper<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2990638> about the causes of district plans’ partisan skews. In a nutshell: Full control of the redistricting process consistently benefits the party in charge. Courts, commissions, and divided governments don’t reliably favor either party. Greater black representation produces a small pro-Republican shift, which disappears if Democrats are responsible for redistricting. And greater urbanization also produces a small pro-Republican shift, but only at the state house level.
Today I want to talk about the consequences of district plans’ partisan tilts. In particular, how does a large efficiency gap (or partisan bias) affect the legislative representation that voters get? The below chart begins to answer this question. The x-axis shows the Democratic share of the statewide vote in congressional elections from 1972 to 2012. The y-axis shows the ideological midpoint of each state’s congressional delegation (where negative values are liberal and positive values are conservative). Separate curves are plotted for plans with large pro-Democratic efficiency gaps (>10%), large pro-Republican efficiency gaps (<-10%), and all other efficiency gaps.
[http://electionlawblog.org/wp-content/uploads/Picture2-1-300x220.png]
It is obvious from the chart that, at least in competitive states, gerrymandering has an enormous impact on representation. Take a state where the congressional vote is evenly split between the parties. If this state has a large pro-Democratic efficiency gap, then its median House member is likely to have an ideal point around -0.2 (or somewhat liberal). If the state has an intermediate efficiency gap, then the ideological midpoint of its House delegation is likely to be near zero (or moderate). And if the state has a large pro-Republican efficiency gap, then its median House member is likely to have an ideal point close to 0.4 (or quite conservative). Thus without a single voter changing her mind, redistricting can shift the ideological midpoint of a House delegation by about 0.6, or roughly two standard deviations. The same electorate can be represented in Congress in completely different ways, depending on how the lines are drawn.
I won’t get into my regression analysis here, but it strongly confirms the story told by the chart. Both the efficiency gap and partisan bias are powerful drivers of congressional representation in every model. What this means, in my view, is that the damage of gerrymandering is not limited to discrepancies between votes cast and seats won. It extends, rather, to the voting records of the legislators who end up in office. Pro-Democratic gerrymanders result in House members who are too liberal for their constituents. Pro-Republican gerrymanders yield House members who are overly conservative. Either way, the basic idea that legislators should be aligned with the voters who elected them is severely compromised.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Do we really want the Supreme Court to decide how partisan is too partisan?”<http://electionlawblog.org/?p=93306>
Posted on June 22, 2017 2:20 pm<http://electionlawblog.org/?p=93306> by Rick Hasen<http://electionlawblog.org/?author=3>
Chuck Lane WaPo column.<https://www.washingtonpost.com/amphtml/opinions/do-we-really-want-the-supreme-court-to-decide-how-partisan-is-too-partisan/2017/06/21/7b5fd7e0-569b-11e7-a204-ad706461fa4f_story.html>
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


“St. Petersburg City Council votes to move forward a model law to abolish super PACs and limit foreign corporate money in local elections.”<http://electionlawblog.org/?p=93304>
Posted on June 22, 2017 2:10 pm<http://electionlawblog.org/?p=93304> by Rick Hasen<http://electionlawblog.org/?author=3>
Release.<https://freespeechforpeople.org/breaking-st-pete-votes-move-forward-defend-democracy-ordinance/>

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


Quote of the Day—Trump Election Integrity Commission Edition<http://electionlawblog.org/?p=93302>
Posted on June 22, 2017 2:08 pm<http://electionlawblog.org/?p=93302> by Rick Hasen<http://electionlawblog.org/?author=3>
“I don’t know why this has fallen on my shoulders,…I’m just a very small old country boy from Arkansas in this bigger commission with Vice President Pence, and I’m just going to do the best I can, to be honest.”
–David Dunn, one of three new members of the Trump “Election Integrity” Commission, quoted in HuffPo’s Some Of Trump’s New Election Investigators Don’t Seem To Have Much Election Experience<http://www.huffingtonpost.com/entry/trump-voter-fraud-commission_us_594c1068e4b01cdedf01e75e?3pa>.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Election Hackers Altered Voter Rolls, Stole Private Data, Officials Say”<http://electionlawblog.org/?p=93298>
Posted on June 22, 2017 8:37 am<http://electionlawblog.org/?p=93298> by Rick Hasen<http://electionlawblog.org/?author=3>
TIME:<http://time.com/4828306/russian-hacking-election-widespread-private-data/>
The hacking of state and local election databases in 2016 was more extensive than previously reported, including at least one successful attempt to alter voter information, and the theft of thousands of voter records that contain private information like partial Social Security numbers, current and former officials tell TIME.
In one case, investigators found there had been a manipulation of voter data in a county database but the alterations were discovered and rectified, two sources familiar with the matter tell TIME. Investigators have not identified whether the hackers in that case were Russian agents.
This is a big deal.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


District Court in Texas Voter ID Case Orders Briefing on Remedies Complete by Mid-July, With Chance Texas Put Back Under Preclearance<http://electionlawblog.org/?p=93294>
Posted on June 22, 2017 8:10 am<http://electionlawblog.org/?p=93294> by Rick Hasen<http://electionlawblog.org/?author=3>
Judge orders briefs<http://electionlawblog.org/wp-content/uploads/veasey-order-1.pdf>, but no new evidentiary hearing.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>


“The Supreme Court’s Chance to End the Gerrymander”<http://electionlawblog.org/?p=93292>
Posted on June 22, 2017 8:06 am<http://electionlawblog.org/?p=93292> by Rick Hasen<http://electionlawblog.org/?author=3>
Bloomberg View editorial.<https://www.bloomberg.com/view/articles/2017-06-21/the-supreme-court-s-chance-to-end-the-gerrymander>
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


“Presidential Transparency: Beyond Tax Returns”<http://electionlawblog.org/?p=93290>
Posted on June 22, 2017 8:03 am<http://electionlawblog.org/?p=93290> by Rick Hasen<http://electionlawblog.org/?author=3>
Brennan Center:<https://www.brennancenter.org/analysis/presidential-transparency-beyond-tax-returns>
What would the president’s tax returns show about his financial ties to foreign powers or other ethical issues? Is there a better way than disclosure of tax returns to get at such information? New Brennan Center analysis explores these questions.
Daniel I. Weiner<https://www.brennancenter.org/expert/daniel-i-weiner>, Lawrence Norden<https://www.brennancenter.org/expert/lawrence-norden>
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>


“United Utah Party sues for access on special election ballot”<http://electionlawblog.org/?p=93288>
Posted on June 22, 2017 7:58 am<http://electionlawblog.org/?p=93288> by Rick Hasen<http://electionlawblog.org/?author=3>
Deseret News:<http://www.deseretnews.com/article/865683420/United-Utah-Party-sues-for-access-on-special-election-ballot.html>
A newly formed Utah political party filed a lawsuit Wednesday against the lieutenant governor’s office seeking to gain access to the ballot for the 3rd District special election to replace Rep. Jason Chaffetz, R-Utah.
The United Utah Party filed suit in U.S. District Court, lodging a complaint against Republican Lt. Gov. Spencer Cox regarding his order to call a special election, and requesting that Cox be prohibited from keeping the United Utah Party’s candidate from the ballot once the party’s bylaws are verified.
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Posted in ballot access<http://electionlawblog.org/?cat=46>


“Catastrophic Attack and Political Reform”<http://electionlawblog.org/?p=93286>
Posted on June 22, 2017 7:55 am<http://electionlawblog.org/?p=93286> by Rick Hasen<http://electionlawblog.org/?author=3>
Bauer:<http://www.moresoftmoneyhardlaw.com/2017/06/catastrophic-attack-political-reform/>
Had the Alexandria shooter had his way and murdered a score or more legislators on a baseball field, the country would have witnessed horrifying carnage–and, as Norm Ornstein has argued<https://www.washingtonpost.com/opinions/the-constitutional-crisis-that-almost-was/2017/06/19/889cc6f2-5524-11e7-ba90-f5875b7d1876_story.html?utm_term=.c95a10d0e54a>, it would have entered into genuine constitutional crisis. The slaughter of the members of one political party would have changed, in minutes, the balance of power in the federal government. A Killer’s Congress would have come into session for an extended time. Special elections don’t happen overnight, or within days or weeks.
It is hard to see how– by what exceptional displays of political leadership–the government in these conditions could re-establish its legitimacy. It would be exceptionally hard in the “best of times”. In a divisive, polarized politics, it is close to unimaginable.
As Ornstein points out, we cannot say that this miserable state of affairs could not have been anticipated. On 9/11, the Capitol only escaped a devastating attack because Flight 93’s passengers gave their lives to bring down the plane. We also cannot say that no thought was then given to reforms to protect the continuity and democratic integrity of government if its senior ranks were to be violently cut down. Ornstein joined with others to establish a Continuity of Government Commission, which then recommended measures<https://www.brookings.edu/research/preserving-our-institutions-the-first-report-of-the-continuity-of-government-commission/> for assuring in the event of catastrophe a functioning, constitutionally legitimate presidency, Congress and the Supreme Court. That was fourteen years ago.
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Posted in election administration<http://electionlawblog.org/?cat=18>


Two Democratic Members of Trump “Election Integrity” Commission Want to Add Consideration of Russian Hacking of Election Systems<http://electionlawblog.org/?p=93282>
Posted on June 22, 2017 7:48 am<http://electionlawblog.org/?p=93282> by Rick Hasen<http://electionlawblog.org/?author=3>
Boston Globe:<http://www.bostonglobe.com/news/politics/2017/06/22/members-trump-vote-fraud-panel-want-look-into-russian-hacking-well/8WNJUvB0Y08fWiNE5OQGhN/story.html>
Two members of a presidential commission charged with investigating alleged voter fraud want the panel to focus on what could be the biggest fraudulent scheme of all: attempted Russian hacking of numerous state election systems.
The call, by the secretaries of state in New Hampshire and Maine, presents a potential change in direction for a special commission that has widely been seen as a political smoke screen to justify the president’s unfounded claims about widespread fraud by individual voters in places like New Hampshire and California…..
Kobach, a Republican who is the Kansas secretary of state and vice chairman of the commission, said the panel would examine the vulnerabilities that Russians exposed if the group wanted to go in that direction.
“In the initial descriptions of the commission, election security and the integrity of equipment and voter databases was not specifically described,” Kobach said. “But if it’s something the commission wants to discuss, we can.”
A spokesman for Vice President Mike Pence, chairman of the commission, referred questions to Kobach. Kobach said that he’s in regular contact with Pence and his staff about the group’s work.
Maybe these Democratic commissioners also want to study whether restrictions on voting such as strict voter identification laws suppress the vote.  I guess Kobach would go along “it it’s something the commission wants to discuss.”
President Trump named three more members <https://twitter.com/srl/status/877891410774700032> of the Commission last night:  They appear to be Luis Borunda<http://sos.maryland.gov/Pages/Deputy-Secretary-Luis-Borunda.aspx>, Deputy Secretary of State of Maryland (appointed by Republican gov. Larry Hogan); Mark Rhodes<https://woodcountywv.com/county-offices/county-clerk.html>, a county clerk from Wood County, WV (who won his reelection<https://woodcountywv.com/files/docs/county-offices/county-clerk/election-voting-information/historical-data/2014/2014gensum.pdf> for office as a Democrat by 5 votes!), and David Dunn,<http://www.capitolpartners.co/partners/> who may have been<https://twitter.com/HHHElections/status/877898502981812224> a Democratic legislator in Arkansas [corrected].Thanks to Doug Chapin for helping to identify these folks. (If any of this is wrong I will update).
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D93282&title=Two%20Democratic%20Members%20of%20Trump%20%E2%80%9CElection%20Integrity%E2%80%9D%20Commission%20Want%20to%20Add%20Consideration%20of%20Russian%20Hacking%20of%20Election%20Systems>
Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>



--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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949.824.3072 - office
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