[EL] ELB News and Commentary 10/20/17

Fri Oct 20 07:55:46 PDT 2017

“Accidental (and apparently harmless) password leak could prompt move away from Crosscheck program”<http://electionlawblog.org/?p=95559>
Posted on October 20, 2017 7:50 am<http://electionlawblog.org/?p=95559> by Rick Hasen<http://electionlawblog.org/?author=3>
Capitol Fax:<https://capitolfax.com/2017/10/19/accidental-and-apparently-harmless-password-leak-could-prompt-move-away-from-crosscheck-program/>
* Indivisible Chicago<https://www.indivisiblechicago.com/crosscheck-documents>…
Crosscheck is an interstate data-sharing program between 28 states. Participating states send their entire voter file to a server in Arkansas. Kansas then downloads all of this data, runs a rudimentary name matching algorithm, and then uploads the results back to Arkansas. We have the passwords to every step in this process.
We’ve posted documents obtained by Indivisible Chicago as a result of FOIA requests to Florida and Illinois. The “yellow paper” redactions are our redactions of usernames and passwords carelessly sent via email. We have redacted instead of posting publicly, as we take the sensitivity of this data more seriously than the Illinois, Arkansas, and Kansas election authorities.
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Posted in election administration<http://electionlawblog.org/?cat=18>

“Senators Demand Online Ad Disclosures as Tech Lobby Mobilizes”<http://electionlawblog.org/?p=95557>
Posted on October 20, 2017 7:45 am<http://electionlawblog.org/?p=95557> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2017/10/19/us/politics/facebook-google-russia-meddling-disclosure.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=4&pgtype=sectionfront>
Senator John McCain and two Democratic senators moved on Thursday to force Facebook, Google and other internet companies to disclose who is purchasing online political advertising, after revelations that Russian-linked operatives bought deceptive ads in the run-up to the 2016 election with no disclosure required.
But the tech industry, which has worked to thwart previous efforts to mandate such disclosure, is mobilizing an army of lobbyists and lawyers — including a senior adviser to Hillary Clinton’s campaign — to help shape proposed regulations. Long before the 2016 election, the adviser, Marc E. Elias, helped Facebook and Google request exemptions from the Federal Election Commission to existing disclosure rules, arguing that ads on the respective platforms were too small to fit disclaimers listing their sponsors.
Now Mr. Elias’s high-powered Democratic election law firm, Perkins Coie, is helping the companies navigate legal and regulatory issues arising from scrutiny of the Russian-linked ads, which critics say might have been flagged by the disclaimers. In a two-front war, tech companies are targeting an election commission rule-making process that was restarted last month and a legislative effort in the Senate.
According to Sen. Klobuchar’s press release,<https://www.klobuchar.senate.gov/public/index.cfm/news-releases?ID=4D8BEA1F-291E-477E-9B47-F08883DE39B4> the bill (whose text I don’t believe has yet been released) would change existing law by:

  *   Amending the Bipartisan Campaign Reform Act of 2002’s definition of electioneering communication to include paid Internet and digital advertisements.
  *   Requiring digital platforms with at least 50,000,000 monthly viewers to maintain a public file of all electioneering communications purchased by a person or group who spends more than $500.00 total on ads published on their platform. The file would contain a digital copy of the advertisement, a description of the audience the advertisement targets, the number of views generated, the dates and times of publication, the rates charged, and the contact information of the purchaser.
  *   Requiring online platforms to make all reasonable efforts to ensure that foreign individuals and entities are not purchasing political advertisements in order to influence the American electorate.
I’ll have more to say when I can see the actual legislation.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>, social media and social protests<http://electionlawblog.org/?cat=58>

“Has the Supreme Court Legalized Public Corruption?<http://electionlawblog.org/?p=95555>
Posted on October 20, 2017 7:35 am<http://electionlawblog.org/?p=95555> by Rick Hasen<http://electionlawblog.org/?author=3>
Important Matt Ford<https://www.theatlantic.com/politics/archive/2017/10/menendez-mcdonnell-supreme-court/543354/> in The Atlantic:
Menendez has denied any wrongdoing, and his lawyers argue the favors don’t rise to the newly heightened standard of official acts. Federal prosecutors, for their part, argue that the stream of benefits that flowed from Melgen to Menendez meet the threshold under federal law without linking specific quids to specific quos. Even though Walls declined to dismiss the charges against the lawmaker, he could still dismiss some of them later in the trial if the prosecution fails to present enough evidence. And like McDonnell himself, Menendez could also challenge any convictions under the stream-of-benefits theory on appeal.
Behind these legal doctrines and prosecutorial theories are questions about the popular legitimacy of the republican system—about voters being able to trust that the officials they elect aren’t the puppets of the country’s richest patrons. What McDonnell and other recent public-corruption rulings risk are institutions where cash and favors flow freely, where consequences are exceptional, and where public vice is made indistinguishable from civic virtue. No Americans expect a government of saints, but they expect their government to be able to root out the sinners in its midst.
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Posted in bribery<http://electionlawblog.org/?cat=54>

Today’s Must Read from Tom Edsall: “Democracy Can Plant the Seeds of Its Own Destruction”<http://electionlawblog.org/?p=95553>
Posted on October 20, 2017 7:31 am<http://electionlawblog.org/?p=95553> by Rick Hasen<http://electionlawblog.org/?author=3>
Sobering stuff.<https://www.nytimes.com/2017/10/19/opinion/democracy-populism-trump.html?rref=collection%2Fsectioncollection%2Fopinion&action=click&contentCollection=opinion&region=stream&module=stream_unit&version=latest&contentPlacement=8&pgtype=sectionfront&_r=0>
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Posted in social media and social protests<http://electionlawblog.org/?cat=58>

CA: “Conservative group sets sights on state’s Voting Rights Act”<http://electionlawblog.org/?p=95549>
Posted on October 20, 2017 7:25 am<http://electionlawblog.org/?p=95549> by Rick Hasen<http://electionlawblog.org/?author=3>
Bob Egelko<http://www.sfgate.com/news/article/Conservative-group-sets-sights-on-state-s-12288953.php> for the SF Chronicle:
A conservative who led a successful legal challenge to a core provision of the federal Voting Rights Act is training his sights on California’s version of the law, which allows minorities to challenge the practice of local “at-large” elections on the basis of racial discrimination and seek to switch them to voting by district.
The 2002 California Voting Rights Act forces cities, counties and school districts “to make race the sole factor in districting,” said Edward Blum, president of the nonprofit Project on Fair Representation, as his Virginia-based group asked a federal judge to overturn the law.
You can find the papers supporting a motion for a preliminary injunction here<http://electionlawblog.org/wp-content/uploads/POFR-Higginson-Prelim-Injunct-11.1-Memo-ISO-Motion-for-Preliminary-Injunction.pdf>.
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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>

Collins and Skover on: The Judge: 26 Machiavellian Lessons<http://electionlawblog.org/?p=95547>
Posted on October 20, 2017 7:20 am<http://electionlawblog.org/?p=95547> by Rick Hasen<http://electionlawblog.org/?author=3>
Yesterday I had the pleasure of hearing Ron Collins and David Skover speak at an event at the 9th Circuit (moderated by Judge Kozinski) on their new book, The Judge: 26 Machiavellian Lessons<https://global.oup.com/academic/product/the-judge-9780190490140?cc=us&lang=en&>. (Judge Kozinski reviewed the book here.<https://www.law360.com/articles/974329>)
It was a great conversation, and I’m looking forward to diving in!
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

Abrams v. Werthheimer on Whether Citizens United Was a “Disaster”<http://electionlawblog.org/?p=95545>
Posted on October 20, 2017 7:17 am<http://electionlawblog.org/?p=95545> by Rick Hasen<http://electionlawblog.org/?author=3>
Fred Wertheimer published an op-ed in the Huffington Post, “Citizens United Has Been a Disaster for the Country.<http://cts.dundee.net/t/4624930/91898075/32804/3/>” It rebuts claims made by Floyd Abrams in The Wall Street Journal in an op-ed entitled “The Citizens United Disaster That Wasn’t<http://cts.dundee.net/t/4624930/91898075/32805/4/>.”
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

“ElectionlineWeekly On The Rise Of Social Media In Election Administration”<http://electionlawblog.org/?p=95543>
Posted on October 20, 2017 7:14 am<http://electionlawblog.org/?p=95543> by Rick Hasen<http://electionlawblog.org/?author=3>
Chapinblog.<http://editions.lib.umn.edu/electionacademy/2017/10/20/electionlineweekly-on-the-rise-of-social-media-in-election-administration/>
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Posted in election administration<http://electionlawblog.org/?cat=18>, social media and social protests<http://electionlawblog.org/?cat=58>

“How Gridlock, Social Media Giants and the Clintons Made the Internet Ripe for Russian Meddling”<http://electionlawblog.org/?p=95541>
Posted on October 20, 2017 7:13 am<http://electionlawblog.org/?p=95541> by Rick Hasen<http://electionlawblog.org/?author=3>
Daily Beast:<https://www.thedailybeast.com/how-gridlock-social-media-titans-and-the-clintons-turned-the-internet-into-the-wild-west-of-american-politics?via=twitter_page>
The co-authors of McCain-Feingold’s House companion bill, Reps. Christopher Shays (R-CT) and Marty Meehan (D-MA), were not pleased. They sued the FEC in part due to that omission, and successfully invalidated 15 FEC regulations. In response, the commission took another crack at regulating online political speech. In 2006, it codified a new definition of “public communications,” one that specified which types of digital speech were covered.
The resulting rule, finalized in 2006, explicitly excluded political communications on the internet from regulation, provided those behind the communications were not compensated for their work by a political committee. It was a solution that protected blogs and other popular forms of online political speech but still encompassed digital political advertising.
That standard came to be known as the “internet exemption.” The rule establishing it passed unanimously, received broad bipartisan praise<http://www.washingtonpost.com/wp-dyn/content/article/2006/03/27/AR2006032701474.html>. Those doing the praising just didn’t know then that they had paved the way for the heyday of political blogging.
THE AGE OF THE BLOG
Critics of the FEC’s approach did sense a slippery slope. University of California-Irvine law professor Rick Hasen, an expert and longtime writer on campaign finance law, predicted that efforts to exempt online news content from regulation would eventually be exploited by special interests.
“As everyone gets to own the equivalent of a printing press, and everyone can become a journalist, the corporate and labor limit on campaign activity stands to be swallowed up by the media exemption,” Hasen wrote<http://supreme.findlaw.com/legal-commentary/the-ripple-effects-of-the-fecs-rules-on-political-blogging.html> in 2005. In a prescient warning nearly five years before the Supreme Court’s decision in Citizens United vs. FEC, Hasen added, “Especially if limits on independent corporate and union election-related activity disappear, disclosure of funding sources become especially important.”
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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>

“In this 5K race, runners will meander NC’s ‘Gerrymander”<http://electionlawblog.org/?p=95539>
Posted on October 19, 2017 2:43 pm<http://electionlawblog.org/?p=95539> by Rick Hasen<http://electionlawblog.org/?author=3>
News and Observer<http://www.newsobserver.com/news/politics-government/state-politics/article179602096.html>:
Runners and walkers planning to take part in a 5K race in Asheville early next month might do better with a compass — a well-tuned political compass, that is.
As lawyers, judges and redistricting experts spend hours in a federal courtroom in Greensboro this week discussing the latest North Carolina redistricting lawsuit, the League of Women Voters of Asheville-Buncombe County and others were planning an event meant to give people interested in North Carolina politics a ground-level view of how gerrymandering looks.
On Nov. 4, from 1 p.m. to 3 p.m., the league is holding the Gerrymander 5K run and walk<http://www.lwvab.org/gerrymander-5k/>that tracks the dividing line between the state’s 10th and 11th congressional districts, which have elected two Republicans to represent the largely Democratic city.
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“Rigged: How Voter Suppression Threw Wisconsin to Trump”—Or Maybe Not<http://electionlawblog.org/?p=95536>
Posted on October 19, 2017 7:10 am<http://electionlawblog.org/?p=95536> by Rick Hasen<http://electionlawblog.org/?author=3>
Ari Berman<http://www.motherjones.com/politics/2017/10/voter-suppression-wisconsin-election-2016/> for Mother Jones.  Despite the headline, and despite this:
The impact of Wisconsin’s voter ID law received almost no attention. When it did, it was often dismissive. Two days after the election, Talking Points Memo<http://talkingpointsmemo.com/cafe/dems-blame-voter-suppression-for-loss> ran a piece by University of California-Irvine law professor Rick Hasen under the headline “Democrats Blame ‘Voter Suppression’ for Clinton Loss at Their Peril.” Wisconsin Gov. Scott Walker said it was “a load of crap<https://soundcloud.com/620-wtmj/111116-governor-scott-walker-joins-midday-with-charlie-sykes>” to claim that the voter ID law had led to lower turnout. When Clinton, in an interview with New York magazine<http://nymag.com/daily/intelligencer/2017/05/hillary-clinton-life-after-election.html>, said her loss was “aided and abetted by the suppression of the vote, particularly in Wisconsin,” the Washington Examiner<http://www.washingtonexaminer.com/hillary-clinton-blames-voter-suppression-for-losing-a-state-she-didnt-visit-once-during-the-election/article/2624620> responded, “Hillary Clinton Blames Voter Suppression for Losing a State She Didn’t Visit Once During the Election.” As the months went on, pundits on the right and left turned Clinton’s loss into a case study for her campaign’s incompetence and the Democratic Party’s broader abandonment of the white working class. Voter suppression efforts were practically ignored, when they weren’t mocked.
Ari relies on a poorly done Priorities USA study and writes:
While we’ll never know precisely how many people were prevented from voting,it’s safe to say that thousands of Wisconsinites like Anthony were denied one of their most fundamental rights. And with Republicans now in control of both the executive and legislative branches in the federal government and a majority of states, that problem will likely get worse.
And again, I think this asks the wrong question:<http://electionlawblog.org/?p=92447>
As I’ve said many times, this whole analysis asks the wrong question. The right question is why a state like Wisconsin can burden the right to vote with unnecessary restrictions for no good reason, and for the bad reason of hoping it will suppress Democratic turnout (whether it actually does or not.)
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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
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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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http://electionlawblog.org<http://electionlawblog.org/>
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