[EL] ELB News and Commentary 11/1/17

Wed Nov 1 07:45:34 PDT 2017

"Facebook, Twitter: Russian actors sought to undermine Trump after election"<http://electionlawblog.org/?p=95777>
Posted on November 1, 2017 7:32 am<http://electionlawblog.org/?p=95777> by Rick Hasen<http://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/story/2017/10/31/facebook-twitter-post-election-russian-meddling-sought-to-undermine-trump-244380>

Top lawyers from Facebook and Twitter said Tuesday that Russian-linked posts and advertisements placed on the social networks after Election Day sought to sow doubt about President Donald Trump's victory.

Facebook general counsel Colin Stretch told a Senate Judiciary panel that content generated by a Russian troll farm known as the Internet Research Agency after Nov. 8 centered on "fomenting discord about the validity of [Trump's] election." That's a change from Russia's pre-election activity, which was largely centered on trying to denigrate Hillary Clinton, the Office of the Director of National Intelligence said in a January report.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D95777&title=%E2%80%9CFacebook%2C%20Twitter%3A%20Russian%20actors%20sought%20to%20undermine%20Trump%20after%20election%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, social media and social protests<http://electionlawblog.org/?cat=58>

"Flagging Online Falsehoods"<http://electionlawblog.org/?p=95775>
Posted on November 1, 2017 7:30 am<http://electionlawblog.org/?p=95775> by Rick Hasen<http://electionlawblog.org/?author=3>

Ned Foley:<http://moritzlaw.osu.edu/election-law/article/?article=13417>

The problem with Russia's use of online platforms was not its foreignness, but its falsity.  To be sure, foreigners-individuals and corporations as well as governments-may be barred from engaging in express advocacy for or against the election of an American candidate ("Vote for Smith," "Vote against Jones," and the functional equivalent of such express electioneering).  That's because foreigners are not American members of "our national political community" (to quote the relevant court decision<https://transition.fec.gov/law/litigation/bluman.shtml> on this point) and can be barred from participating directly in America's elections.

But much of the messaging that apparently came from Russian sources did not involve direct electioneering.  Instead, it involved political topics in general-race relations, immigration, gun regulation, and so forth-rather than the election of candidates.  While these messages were intended to affect election outcomes, that alone doesn't make them electioneering for First Amendment purposes.  If these generally political, but not specifically electoral, messages were sent by Americans, and if they were not demonstrably false, then they would be fully protected by the First Amendment.  It would not matter their point of view: for gun control or against, pro-choice or pro-life, liberal or conservative, or whatever.  This would be so whether these political messages were in print or online.  And if it turned out that the same generally political, but not specifically electoral, message had a foreign rather than American author, that fact alone would not change the message's protection under the First Amendment.

I fundamentally disagree with Ned that the problem is falsity, and I hope I can write something about this soon.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D95775&title=%E2%80%9CFlagging%20Online%20Falsehoods%E2%80%9D>

Posted in campaign finance<http://electionlawblog.org/?cat=10>
Institute for Free Speech (formerly CCP) Opposes Honest Ads Act Aimed at Foreign Spending on US Elections<http://electionlawblog.org/?p=95773>
Posted on November 1, 2017 7:27 am<http://electionlawblog.org/?p=95773> by Rick Hasen<http://electionlawblog.org/?author=3>

Analysis.<http://www.ifs.org/wp-content/uploads/2017/10/2017-11-01_Legislative-Brief_Federal_S-1989_Honest-Ads-Act.pdf>
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D95773&title=Institute%20for%20Free%20Speech%20(formerly%20CCP)%20Opposes%20Honest%20Ads%20Act%20Aimed%20at%20Foreign%20Spending%20on%20US%20Elections>
Posted in campaign finance<http://electionlawblog.org/?cat=10>

"An exploration of Donald Trump's allegations of massive voter fraud in the 2016 General Election"<http://electionlawblog.org/?p=95771>
Posted on October 31, 2017 3:40 pm<http://electionlawblog.org/?p=95771> by Rick Hasen<http://electionlawblog.org/?author=3>

David Cottrell, Michael Herron, and Sean Westwood have written this article<http://www.sciencedirect.com/science/article/pii/S026137941730166X?via%3Dihub#!> for Electoral Studies. Here is the abstract:

As Republican candidate for president and later 45th President of the United States, Donald Trump has claimed repeatedly and vociferously that the 2016 General Election was tainted by massive voter fraud. Here we use aggregate election statistics to study Trump's claims and focus on non-citizen populations across the country, state-specific allegations directed at California, New Hampshire, and Virginia, and the timing of election results. Consistent with existing literature, we do not uncover any evidence supportive of Trump's assertions about systematic voter fraud in 2016. Our results imply neither that there was no fraud at all in the 2016 General Election nor that this election's administration was error-free. They do strongly suggest, however, that the expansive voter fraud concerns espoused by Donald Trump and those allied with him are not grounded in any observable features of the 2016 election.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D95771&title=%E2%80%9CAn%20exploration%20of%20Donald%20Trump%E2%80%99s%20allegations%20of%20massive%20voter%20fraud%20in%20the%202016%20General%20Election%E2%80%9D>
Posted in chicanery<http://electionlawblog.org/?cat=12>, The Voting Wars<http://electionlawblog.org/?cat=60>

"NC Republicans are worried about the man who might redraw our voting map. They should be."<http://electionlawblog.org/?p=95769>
Posted on October 31, 2017 1:45 pm<http://electionlawblog.org/?p=95769> by Rick Hasen<http://electionlawblog.org/?author=3>

Peter St. Onge<http://www.newsobserver.com/opinion/article181897191.html> for News and Observer ed board:

We looked at more than a dozen op-eds, interviews and projects that Persily has participated in during the last decade. He's commented on court decisions involving North Carolina cases - as Strach notes in his filing - but Persily's analysis of those cases <http://www.npr.org/2016/12/05/504188630/questions-of-race-and-redistricting-return-to-the-supreme-court> wasn't particularly controversial or partisan. Still, Republicans should be worried about the maps that Persily might draw - not because he's biased against the GOP, but because he's biased against voters being disenfranchised.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D95769&title=%E2%80%9CNC%20Republicans%20are%20worried%20about%20the%20man%20who%20might%20redraw%20our%20voting%20map.%20They%20should%20be.%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

North Carolina Court Rejects Challenge to Changes to Elections Board; Appeal Coming to State Supreme Court<http://electionlawblog.org/?p=95767>
Posted on October 31, 2017 12:49 pm<http://electionlawblog.org/?p=95767> by Rick Hasen<http://electionlawblog.org/?author=3>

A three judge state court, on remand from the NC Supreme Court, unanimously held<https://drive.google.com/file/d/0B8mzo_D7IoZxVTBUbVQ0b3IwUWM/view> that the changes to the Election board rules came up as a nonjusticiable political question, meaning the courts were without the power to reach the merits. In the alternative, the lower court held that the changes to the composition of the elections board did not violate the separation of powers guaranteed by the state constitution.

The issue will now be appealed to the state Supreme Court, where Democratic judges outnumber Republican judges. These changes were put in place by the NC General Assembly just as a Democrat was elected governor, so as to weaken the governor's appointment powers over the elections board.

[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D95767&title=North%20Carolina%20Court%20Rejects%20Challenge%20to%20Changes%20to%20Elections%20Board%3B%20Appeal%20Coming%20to%20State%20Supreme%20Court>
Posted in 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
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/>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20171101/f01332bc/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2021 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20171101/f01332bc/attachment.png>