[EL] ELB News and Commentary 9/8/17

[Rick Hasen]

“FEC Might Act on Russia-Linked Facebook Political Ads: Official”<http://electionlawblog.org/?p=94678>
Posted on September 7, 2017 9:26 pm<http://electionlawblog.org/?p=94678> by Rick Hasen<http://electionlawblog.org/?author=3>
Bloomberg BNA:<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=120179635&vname=mpebulallissues&jd=0000015e5d83de90a95ffdbf159f0002&split=0>
The revelation that Russian sources financed political ads on Facebook in the 2016 presidential campaign could prompt enforcement action by the Federal Election Commission, agency Vice Chairwoman Caroline Hunter said.
“It’s something we can and should deal with in the enforcement process,” Hunter said Sept. 7, noting that federal campaign finance rules bar the use of foreign campaign money to influence U.S. elections. She said she couldn’t comment further on details of the Facebook matter because anything that might come before the FEC as an enforcement case is covered by strict confidentiality rules.
The details of the Facebook matter could be crucial, however, Hunter suggested. She said FEC rules exempt “pure issue speech” from coverage under campaign finance law.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94678&title=%E2%80%9CFEC%20Might%20Act%20on%20Russia-Linked%20Facebook%20Political%20Ads%3A%20Official%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>, federal election commission<http://electionlawblog.org/?cat=24>


“Data on Out-of-State IDs Fuels Cries of ‘Fraud’ in 2016 Election”<http://electionlawblog.org/?p=94675>
Posted on September 7, 2017 9:11 pm<http://electionlawblog.org/?p=94675> by Rick Hasen<http://electionlawblog.org/?author=3>
NHPR:<http://nhpr.org/post/data-out-state-ids-fuels-cries-fraud-2016-election#stream/0>
A newly released report from the New Hampshire Secretary of State and Department of Safety<http://mediad.publicbroadcasting.net/p/nhpr/files/201709/170906_-_depts_of_state_and_safety_response__2_.pdf> says a majority of people who used out-of-state IDs to register in last November’s elections haven’t registered vehicles in New Hampshire or gotten in-state drivers licenses in the months since. While this data alone doesn’t provide proof of voter fraud, as NHPR has noted before<http://nhpr.org/post/where-were-out-state-ids-used-vote-new-hampshire-last-november#stream/0>, it’s quickly become fodder in an ongoing debate about New Hampshire’s voting requirements….
Within hours of the report’s release, Kansas Secretary of State Kris Kobach penned a Breitbart column pointing to the data as evidence that “a pivotal, close election [the U.S. Senate Race between Kelly Ayotte and Maggie Hassan] was likely changed through voter fraud<http://www.breitbart.com/big-government/2017/09/07/exclusive-kobach-out-of-state-voters-changed-outcome-new-hampshire-senate-race/>.” Kobach is co-chair of the Trump administration’s Presidential Advisory Commission on Election Integrity, which is meeting in New Hampshire next week and of which New Hampshire Secretary of State Bill Gardner is a member.
Gardner, in an interview Thursday evening, said he hadn’t yet read Kobach’s column. But, Gardner said, “I’ll certainly talk to him about it next week.”
When asked if he had any reason to doubt the legitimacy of last year’s election outcome, Gardner replied: “No.”
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94675&title=%E2%80%9CData%20on%20Out-of-State%20IDs%20Fuels%20Cries%20of%20%E2%80%98Fraud%E2%80%99%20in%202016%20Election%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“The California Voter Experience Study: A Statewide Survey of Voter Perspectives on Vote-By-Mail and Vote Centers”<http://electionlawblog.org/?p=94672>
Posted on September 7, 2017 4:11 pm<http://electionlawblog.org/?p=94672> by Rick Hasen<http://electionlawblog.org/?author=3>
California Civic Engagement Project:<http://conta.cc/2vQAaHu>
In 2016, nearly 58% of ballots cast in the general election were Vote-by-Mail (VBM) ballots-up from 27% in 2002. Encouraged by this rising usage, some counties are now planning to expand access to VBM balloting, and are making plans to switch to a new Vote Center Model. This new model provides for all registered voters in a participating county to be mailed a VBM ballot while, at the same time, also replacing neighborhood polling places with Voter Centers.
The CCEP’s new statewide survey research examines California voters’ use of VBM and their perceptions of the Vote Center Model. The findings identify some of the opportunities and challenges that may arise when switching to a Vote Center Model, particularly for electorally underrepresented populations. This research will help inform implementation strategies by election officials and community leaders as they work together in their planning for a new election model.
Highlights include:

  *   A majority of Californians (61%) do not like the idea of Vote Centers replacing neighborhood polling places.

  *   71% of polling place voters did not like the idea of Vote Centers, compared to 53% of Vote-By-Mail voters who did not like it.

  *   Younger voters were more receptive to the idea of a Vote Center – 36% of voters age 18-29 were receptive to the idea of Vote Centers, versus 25% of voters age 65 older.

  *   66% of California voters are willing to travel only 15 minutes or less to get to a Vote Center, regardless of their mode of transportation.

  *   Just over a quarter of voters who do not typically use the U.S. Postal Service (USPS) to mail a VBM ballot, said they did not trust the USPS to get their ballot delivered safely, or in time to be counted.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94672&title=%E2%80%9CThe%20California%20Voter%20Experience%20Study%3A%20%20A%20Statewide%20Survey%20of%20Voter%20Perspectives%20on%20Vote-By-Mail%20and%20Vote%20Centers%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>


Issacharoff and Grossman: ACLU: Partisan Gerrymandering Undermines the Integrity of Elections, Violates Right to Cast a Meaningful Ballot<http://electionlawblog.org/?p=94670>
Posted on September 7, 2017 2:45 pm<http://electionlawblog.org/?p=94670> by Rick Hasen<http://electionlawblog.org/?author=3>
The following is a guest post from Sam Issacharoff<https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.overview&personid=23845> and Perry Grossman <https://www.nyclu.org/en/nyclu-staff#legal> who worked on this amicus brief<https://www.brennancenter.org/sites/default/files/legal-work/Gill_AmicusBrief_ACLU_InSupportofAppelles.pdf> in the Whitford case:
In his concurrence in Vieth v. Jubilirer, Justice Kennedy suggested that the First Amendment provides a “sounder and more prudential basis” for judicial intervention in partisan gerrymandering “than does the Equal Protection Clause.”  Our amicus brief on behalf of the ACLU and its affiliates takes up Justice Kennedy’s invitation by providing a First Amendment approach grounded in the principle of government neutrality in regulating private expression in the public domain.  Although the state may speak on its own behalf as a participant in the marketplace of ideas, it can’t fix marketplace rules to ensure its preferred viewpoints prevail over popular competition.  This neutrality principle takes on special force in the democratic process, particularly in the area of election administration, where self-dealing by the government can undermine the competitive mechanisms essential to electoral accountability to shifting voter preferences.
Not every limitation on the right to vote requires judicial intervention. Some burdens on the franchise are unavoidable.  The Court has held that some partisan considerations are inherent and permissible in the apportionment process.  But some burdens so alter the nature of the franchise that they deny a citizen’s inalienable right to full and effective participation in the political process.  Where a state uses its apportionment power to enact a map designed to resist changes in voter preference in order to award its preferred political party a legislative monopoly, it impairs the integrity of the democratic process.  The crux of our First Amendment argument is that a  redistricting plan that disables the competitive mechanism that gives elections legitimacy debases voters’ rights to cast a meaningful ballot and to associate for political purposes.
To address this harm, we propose a burden-shifting approach generally applied to challenges to government discrimination on the basis of political activity.  Like the district court, our burden shifting approach asks separately about the legislative intent behind a redistricting plan and the effect of that plan.  The intent prong considers whether the state drew its redistricting plan to entrench its preferred party in office.  This prong considers classic evidence of legislative intent that has factored into other redistricting cases—contemporaneous statements, political history, erratic procedures, and irregular district shapes.  The effects prong has long presented a more complicated question, but we found a ready analog in pattern-or-practice cases under the civil rights laws.  To determine whether an apportionment plan gives effect to a state’s intent to entrench, we propose that courts inquire whether a challenged map significantly deviates from the state’s normal range of partisan balance in favor of the state’s preferred party in a way that will endure any likely electoral outcome.  Like the pattern-or-practice cases, our standard is suited to considering empirical evidence within the framework of a “totality of the circumstances” approach.  This approach sets a discernible threshold for establishing a prima facie case, but gives district courts latitude to exercise their role as finders of fact and to consider both existing and emerging methods of analysis as well as probative qualitative evidence.
A key feature of this proposed standard is that the burden-shifting does not end the trial court’s inquiry, but instead only provides the predicate for demanding that a state provide a legitimate basis for its map—as the district court did here.  This approach offers both the parties and the court manageable but meaningful burdens of production in trying partisan gerrymandering cases.  First, the standard does not require plaintiffs to present irrefutably dispositive empirical evidence to establish a prima facie case, only sufficient, cumulative evidence to compel justification. Second, the standard only requires defendants to offer legitimate, rather than compelling, justifications for a challenged plan—although the plan must be necessary to advance those legitimate interests.  And third, the standard is sufficiently clear and demanding to deter unmeritorious cases and to provide courts with guideposts for assessing liability that are well-defined but not rigid.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94670&title=Issacharoff%20and%20Grossman%3A%20ACLU%3A%20Partisan%20Gerrymandering%20Undermines%20the%20Integrity%20of%20Elections%2C%20Violates%20Right%20to%20Cast%20a%20Meaningful%20Ballot>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


“Did Facebook ads traced to a Russian company violate U.S. election law?”<http://electionlawblog.org/?p=94668>
Posted on September 7, 2017 2:14 pm<http://electionlawblog.org/?p=94668> by Rick Hasen<http://electionlawblog.org/?author=3>
Matea Gold<https://www.washingtonpost.com/news/post-politics/wp/2017/09/07/did-facebook-ads-traced-to-a-russian-company-violate-u-s-election-law/?utm_term=.1f9e827cff19> for WaPo.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94668&title=%E2%80%9CDid%20Facebook%20ads%20traced%20to%20a%20Russian%20company%20violate%20U.S.%20election%20law%3F%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>


Why No Women Testifying Before Pence-Kobach Commission? NH SOS Gardner Blames Lack of Women in Computer Science<http://electionlawblog.org/?p=94666>
Posted on September 7, 2017 1:01 pm<http://electionlawblog.org/?p=94666> by Rick Hasen<http://electionlawblog.org/?author=3>
Really.<http://talkingpointsmemo.com/muckraker/trump-commission-voter-fraud-second-meeting-preview>
Note that most of the witnesses are not computer scientists.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94666&title=Why%20No%20Women%20Testifying%20Before%20Pence-Kobach%20Commission%3F%20NH%20SOS%20Gardner%20Blames%20Lack%20of%20Women%20in%20Computer%20Science>
Posted in The Voting Wars<http://electionlawblog.org/?cat=60>


“Election officials criticize Harvard study of voter registration vulnerabilities”<http://electionlawblog.org/?p=94664>
Posted on September 7, 2017 12:43 pm<http://electionlawblog.org/?p=94664> by Rick Hasen<http://electionlawblog.org/?author=3>
Cyberscoop:<https://www.cyberscoop.com/harvard-study-online-voter-registration-vulnerabilities-election-officials-pushback/>
Election officials are pushing back against a new Harvard study saying hackers could disenfranchise Americans in 35 states and the District of Columbia by exploiting vulnerabilities in online voter registration systems.
The study<https://techscience.org/a/2017090601/> published Wednesday in the journal Technology Science<https://techscience.org/editorial_board.html>says hackers could buy — either from commercial data brokers or more cheaply from cybercriminals — all the personal data they need about millions of Americans to fraudulently alter voter registration records online. Calling it “voter identity theft,” journal Editor-in-Chief Latanya Sweeney, who is also a Harvard professor, and co-authors Ji Su Yoo and Jinyan Zang say a broad scale attack on several states could be carried out with data costing just a few thousand dollars.
But state elections officials told CyberScoop the report was overblown. “The study doesn’t reflect the safeguards that the states have in place to guard against this sort of thing,” said Indiana Secretary of State Connie Lawson, this year’s president of the National Association of Secretaries of State, or NASS. “I’m disappointed that a Harvard professor would put out such a study with incomplete research and inaccuracies like that.”…
“The vast majority of states mentioned in the report already do the things [the authors] recommend [as mitigations] and take security measures … to  prevent bulk changes to voter records,” said Judd Choate, elections director for Colorado and president of NASED.
He noted that the vulnerabilities highlighted — essentially that someone with enough personal data could impersonate a voter and change their registration record — had nothing to do with the online availability of the process but were inherent in any system of voter self-registration.
Similar identity theft issues also exist with paper registration through the mail, Choate added.
See also this statement<https://bipartisanpolicy.org/press-release/vulnerabilities-in-online-voter-registration-systems/> from the BPC’s John Fortier and Matt Weil.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94664&title=%E2%80%9CElection%20officials%20criticize%20Harvard%20study%20of%20voter%20registration%20vulnerabilities%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>


“The Fake Americans Russia Created to Influence the Election”<http://electionlawblog.org/?p=94662>
Posted on September 7, 2017 12:37 pm<http://electionlawblog.org/?p=94662> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2017/09/07/us/politics/russia-facebook-twitter-election.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news>
An investigation by The New York Times, and new research from the cybersecurity firm FireEye, reveals some of the mechanisms by which suspected Russian operators used Twitter and Facebook to spread anti-Clinton messages and promote the hacked material they had leaked. On Wednesday, Facebook officials<https://www.nytimes.com/2017/09/06/technology/facebook-russian-political-ads.html> disclosed that they had shut down several hundred accounts that they believe were created by a Russian company linked to the Kremlin and used to buy $100,000 in ads pushing divisive issues during and after the American election campaign.
On Twitter, as on Facebook, Russian fingerprints are on hundreds or thousands of fake accounts that regularly posted anti-Clinton messages. Many were automated Twitter accounts, called bots, that sometimes fired off identical messages seconds apart — and in the exact alphabetical order of their made-up names, according to the FireEye researchers. On Election Day, for instance, they found that one group of Twitter bots sent out the hashtag #WarAgainstDemocrats more than 1,700 times.
The Russian efforts were sometimes crude or off-key, with a trial-and-error feel, and many of the suspect posts were not widely shared. The fakery may have added only modestly to the din of genuine American voices in the pre-election melee, but it helped fuel a fire of anger and suspicion in a polarized country.
Given the powerful role of social media in political contests, understanding the Russian efforts will be crucial in preventing or blunting similar, or more sophisticated, attacks in the 2018 congressional races and the 2020 presidential election. Multiple government agencies have investigated the Russian attack, though it remains unclear whether any agency is focused specifically on tracking foreign intervention in social media. Both Facebook and Twitter say they are studying the 2016 experience and how to defend against such meddling.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94662&title=%E2%80%9CThe%20Fake%20Americans%20Russia%20Created%20to%20Influence%20the%20Election%E2%80%9D>
Posted in chicanery<http://electionlawblog.org/?cat=12>, The Voting Wars<http://electionlawblog.org/?cat=60>


“What is Extreme Gerrymandering? Understanding how extreme partisan gerrymandering works.”<http://electionlawblog.org/?p=94660>
Posted on September 7, 2017 12:35 pm<http://electionlawblog.org/?p=94660> by Rick Hasen<http://electionlawblog.org/?author=3>
Michael Li and Alexis Farmer<https://www.brennancenter.org/blog/what-is-extreme-gerrymandering> for the Brennan Center.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94660&title=%E2%80%9CWhat%20is%20Extreme%20Gerrymandering%3F%20Understanding%20how%20extreme%20partisan%20gerrymandering%20works.%E2%80%9D>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


“Ventura faces threat of voting rights suit”<http://electionlawblog.org/?p=94658>
Posted on September 7, 2017 12:30 pm<http://electionlawblog.org/?p=94658> by Rick Hasen<http://electionlawblog.org/?author=3>
VC Star:<http://www.vcstar.com/story/news/local/communities/ventura/2017/09/06/ventura-faces-threat-voting-rights-suit/638358001/?cookies=&from=global>
In some parts of Ventura, Latinos make up eight in 10 residents. Yet there is no Latino elected official and you’d be hard pressed to find the last one who served on the City Council.
That population concentration and lack of representation may be sufficient to show Ventura is in violation of the California Voting Rights Act.
That’s the view of attorney Robert Rubin, who sent a letter to city officials on behalf of several minority residents, alleging the city’s election practices dilute the political power of underrepresented groups.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94658&title=%E2%80%9CVentura%20faces%20threat%20of%20voting%20rights%20suit%E2%80%9D>
Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>


Trump Jr. Appears to Acknowledge He Knew Meeting with Russians to Get “Dirt” on Clinton Raised Legal Questions<http://electionlawblog.org/?p=94656>
Posted on September 7, 2017 8:42 am<http://electionlawblog.org/?p=94656> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2017/09/07/us/politics/trump-russia-investigation.html?smid=tw-share>
Donald Trump Jr. told Senate investigators on Thursday that he set up a June 2016 meeting with a Russian lawyer<https://www.nytimes.com/2017/07/09/us/politics/trump-russia-kushner-manafort.html> because he was intrigued that she might have damaging information about Hillary Clinton, saying it was important to learn about Mrs. Clinton’s “fitness” to be president.
But nothing came of the Trump Tower meeting, he said, and he was adamant that he never colluded with the Russian government’s campaign to disrupt last year’s presidential election.
In a prepared statement during an interview with Senate Judiciary Committee investigators, the younger Mr. Trump said he was initially conflicted when he heard that the lawyer, Natalia Veselnitskaya, might have damaging information about Mrs. Clinton. Despite his interest, he said, he always intended to consult with his own lawyers about the propriety of using any information that Ms. Veselnitskaya, who has ties to the Kremlin, gave him at the meeting.
A copy of Mr. Trump’s statement was obtained by The New York Times.
The acknowledgment by the president’s eldest son that he intended to seek legal counsel after the meeting suggests that he knew, or at least suspected, that accepting potentially damaging information about a rival campaign from a foreign country raised thorny legal issues.
This goes to the question Andy Grewal <http://electionlawblog.org/?p=93877> raised about whether Trump Jr. displayed enough wilfullness to be criminally liable for any campaign finance violations.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94656&title=Trump%20Jr.%20Appears%20to%20Acknowledge%20He%20Knew%20Meeting%20with%20Russians%20to%20Get%20%E2%80%9CDirt%E2%80%9D%20on%20Clinton%20Raised%20Legal%20Questions>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>


President Trump Nominates FEC Commissioner Matthew Petersen for Federal District Court Judgeship in DC<http://electionlawblog.org/?p=94654>
Posted on September 7, 2017 7:23 am<http://electionlawblog.org/?p=94654> by Rick Hasen<http://electionlawblog.org/?author=3>
Dave Levinthal<https://twitter.com/davelevinthal/status/905798128359624705> with the news, who also notes<https://twitter.com/davelevinthal/status/905797255483064321> that if Petersen is confirmed there would be only 4 commissioners on the 6-member commission, a bare quorum.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94654&title=President%20Trump%20Nominates%20FEC%20Commissioner%20Matthew%20Petersen%20for%20Federal%20District%20Court%20Judgeship%20in%20DC>
Posted in federal election commission<http://electionlawblog.org/?cat=24>


--
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/20170908/26dcc83d/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/20170908/26dcc83d/attachment.png>