[EL] ELB News and Commentary 9/20/17

Wed Sep 20 08:32:12 PDT 2017

Regular Blogging Resumes on Monday, Sept. 25<http://electionlawblog.org/?p=94941>
Posted on September 20, 2017 8:29 am<http://electionlawblog.org/?p=94941> by Rick Hasen<http://electionlawblog.org/?author=3>

See you then!

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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

George Will on Hasen on Volokh on Cheap Speech<http://electionlawblog.org/?p=94939>
Posted on September 20, 2017 8:24 am<http://electionlawblog.org/?p=94939> by Rick Hasen<http://electionlawblog.org/?author=3>

New syndicated George Will column:<http://www.pjstar.com/opinion/20170919/will-steep-cost-of-cheap-speech>

Volokh anticipated today’s a la carte world of instant, inexpensive electronic distributions of only such content as pleases particular individuals. In 1995, he said that “letting a user configure his own mix of materials” can cause social problems as close-minded people cocoon themselves in a cloud of only congenial information. This exacerbates political polarization by reducing “common knowledge about current events.”

Technologies that radically reduce intermediaries and other barriers to entry into society’s conversation mean that ignorance, incompetence and intellectual sociopathy are no longer barriers. One result is a miasma of distrust of all public speech. Volokh warned about what has come about: odious groups cheaply disseminating their views to thousands of the likeminded. Nevertheless, he stressed the danger of letting “government intervene when it thinks it has found ‘market failure.’”

Now, Richard L. Hasen of the University of California, Irvine, offers a commentary on Volokh, forthcoming in the First Amendment Law Review<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3017598>. Hasen supports campaign-spending regulations whereby government limits the quantity of campaign speech. Given, however, that “in place of media scarcity, we now have a media firehose,” such regulations are of diminished importance. As, Hasen says, using the internet to tap small donors has “a democratizing and equalizing effect.”

But, he correctly says, cheap speech is reducing the relevance of political parties and newspapers as intermediaries between candidates and voters, which empowers demagogues. Voters are directly delivered falsehoods such as the 2016 story of Pope Francis’ endorsement of Donald Trump, which Hasen says “had 960,000 Facebook engagements.” He cites a study reporting approximately three times more pro-Trump than pro-Hillary Clinton fake news stories, with the former having four times more Facebook shares than the latter.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, social media and social protests<http://electionlawblog.org/?cat=58>

“ACLU moves from defense to offense, starting in Kris Kobach’s home state”<http://electionlawblog.org/?p=94937>
Posted on September 20, 2017 8:17 am<http://electionlawblog.org/?p=94937> by Rick Hasen<http://electionlawblog.org/?author=3>

McClatchy reports.<http://www.mcclatchydc.com/news/politics-government/election/article174293861.html>

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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“Trump Is Using Targeted Facebook Ads To Reassure Supporters He Will Build The Border Wall”<http://electionlawblog.org/?p=94935>
Posted on September 20, 2017 8:10 am<http://electionlawblog.org/?p=94935> by Rick Hasen<http://electionlawblog.org/?author=3>

BuzzFeed:<https://www.buzzfeed.com/craigsilverman/trump-is-using-targeted-facebook-ads-to-reassure-supporters?utm_term=.df7DJxZq4M#.hxYqBW9X23>

The personal Facebook page of Vice President Mike Pence is also running a version of the ad. One difference between the Pence and Trump ads is the VP’s refers to “Fake News media,” while Trump’s calls out the “mainstream media.” Both ads include a dig against “liberals in congress.”

A White House spokesman told BuzzFeed News the ads are being run by the Trump campaign, and referred all questions to it. The Trump campaign did not respond to emails or phone messages about the ads.

The ads are not visible on the timelines of the Trump or Pence Facebook pages. They are, therefore, so-called “dark post ads” because they can only be seen by people the campaign chose to target with the message. This is the same type of ad Facebook recently acknowledged<https://newsroom.fb.com/news/2017/09/information-operations-update/> was purchased by a Russian troll factory in order to target Americans during the election. That revelation has caused lawmakers such as Sen. Mark Warner to discuss the need to regulate online political ads.

“An American can still figure out what content is being used on TV advertising. … But in social media there’s no such requirement,” Warner said, according to CNN<https://go.redirectingat.com/?id=74679X1524629&sref=https%3A%2F%2Fwww.buzzfeed.com%2Fcraigsilverman%2Ffacebooks-russian-ads-disclosure-opens-a-new-front-that&url=http%3A%2F%2Fwww.cnn.com%2F2017%2F09%2F07%2Fpolitics%2Fwarner-facebook-russia-hacking%2Findex.html&xcust=4624270%7CBFLITE&xs=1>.
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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>

David Bossie Getting Into the Voter Fraud Bamboozlement Industry?<http://electionlawblog.org/?p=94932>
Posted on September 20, 2017 7:55 am<http://electionlawblog.org/?p=94932> by Rick Hasen<http://electionlawblog.org/?author=3>

Things that make you wonder:

[http://electionlawblog.org/wp-content/uploads/Screen-Shot-2017-09-20-at-7.55.10-AM-282x300.png]
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>

“Fate Is Uncertain for House GOP’s Campaign Finance Riders”<http://electionlawblog.org/?p=94930>
Posted on September 19, 2017 9:03 pm<http://electionlawblog.org/?p=94930> by Rick Hasen<http://electionlawblog.org/?author=3>

Bloomberg BNA:<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=120917514&vname=mpebulallissues&jd=0000015e9b42d962af7edf5fc1860002&split=0>
The House and Senate will negotiate several provisions curbing federal powers on campaign finance that were tacked onto the House’s $1.2 trillion spending package earlier this month.
The Senate is not expected to pass the bill in its current form, however, and lawmakers and aides have said appropriations talks will likely be on hold as appropriators await bipartisan budget talks that will give them better numbers to fund favored programs. A bicameral appropriations deal must be reached and signed by the president before Dec. 8, when government funds are set to expire.
Before the House spending package cleared the chamber Sept. 14, Republican leaders attached a handful of money-in-politics riders onto a measure funding the Internal Revenue Service, Federal Election Commission, and Securities and Exchange Commission. The package (H.R. 3354) passed on a mostly party-line, 211-198 vote Sept. 14.
Fred Wertheimer, president of nonprofit Democracy 21, told Bloomberg BNA in a phone interview he hopes grassroots opposition to some of the campaign finance riders would encourage Senate Democrats to fight against the riders.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Trump using campaign, RNC funds to pay legal bills from Russia probe: sources”<http://electionlawblog.org/?p=94928>
Posted on September 19, 2017 8:41 pm<http://electionlawblog.org/?p=94928> by Rick Hasen<http://electionlawblog.org/?author=3>

Reuters:<https://www.reuters.com/article/us-usa-trump-lawyers-exclusive/trump-using-campaign-rnc-funds-to-pay-legal-bills-from-russia-probe-sources-idUSKCN1BU2OS>

U.S. President Donald Trump is using money donated to his re-election campaign and the Republican National Committee to pay for his lawyers in the probe of alleged Russian interference in the U.S. election, two people familiar with the matter told Reuters.

Following Reuters exclusive report on Tuesday, CNN reported that the Republican National Committee paid in August more than $230,000 to cover some of Trump’s legal fees related to the probe.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

Three Judge Court Severely Criticizes NC for Racial Gerrymander, and Explains Earlier Decision Not to Order Special Election<http://electionlawblog.org/?p=94924>
Posted on September 19, 2017 8:30 pm<http://electionlawblog.org/?p=94924> by Rick Hasen<http://electionlawblog.org/?author=3>

Back in July<http://electionlawblog.org/?p=94109>, after the Supreme Court stopped a special election for legislative districts in North Carolina after a finding of a racial gerrymander, and ordered a three-judge court to reconsider the issue, the three-judge court on remand decided to reject plaintiffs’ renewed request for a special election in 2017.

Now the three-judge court has issued a unanimous 48-page opinion<http://electionlawblog.org/wp-content/uploads/covington-remand-1.pdf> explaining its earlier decision.  A snippet from the introduction of the opinion, which is very critical of North Carolina’s conduct in the case:

We conclude that the widespread, serious, and longstanding nature of the constitutional violation—among the largest racial gerrymanders ever encountered by a federal court—counsels in favor of granting Plaintiffs’ request. Likewise, any intrusion on state sovereignty associated with ordering the requested elections is more than justified by the severity and scope of that violation and its adverse impact on North Carolina voters’ right to choose— and hold accountable—their representatives, especially since the legislature took no action toward remedying the constitutional violation for many weeks after affirmance of this Court’s order, and the Legislative Defendants have otherwise acted in ways that indicate they are more interested in delay than they are in correcting this serious constitutional violation. Notwithstanding these weighty considerations favoring a special election, we nonetheless conclude such an election wouldnot be in the interest of Plaintiffs and the people of North Carolina. The compressed and overlapping schedule such an election would entail is likely to confuse voters, raise barriers to participation, and depress turnout, and therefore would not offer the vigorously contested election needed to return to the people of North Carolina their sovereignty. Accordingly, we deny Plaintiffs’ request.

We recognize that legislatures elected under the unconstitutional districting plans have governed the people of North Carolina for more than four years and will continue to do so for more than two years after this Court held that the districting plans amount to unconstitutional racial gerrymanders. But at this juncture, with only a few months before the start of the next election cycle, we are left with little choice but to conclude that a special election would not be in the interest of Plaintiffs nor the people of North Carolina

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Posted in redistricting<http://electionlawblog.org/?cat=6>

“Time to Protect Our Democracy; Anthony Kennedy should follow Byron White’s guidance and strike down partisan gerrymandering.”<http://electionlawblog.org/?p=94922>
Posted on September 19, 2017 8:09 pm<http://electionlawblog.org/?p=94922> by Rick Hasen<http://electionlawblog.org/?author=3>

Palma Joy Strand, who worked with Justice White as a clerk on Davis v. Bandemer, has written this piece <http://www.slate.com/articles/news_and_politics/jurisprudence/2017/09/if_anthony_kennedy_follows_precedent_he_ll_strike_down_partisan_gerrymandering.html> for Slate.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“Voter fraud commission fails on all fronts”<http://electionlawblog.org/?p=94919>
Posted on September 19, 2017 6:03 pm<http://electionlawblog.org/?p=94919> by Rick Hasen<http://electionlawblog.org/?author=3>

Mark Mellman column.<https://www.msn.com/en-us/news/politics/mellman-voter-fraud-commission-fails-on-all-fronts/ar-AAseu8A>

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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

“‘Election integrity’ means voter suppression”<http://electionlawblog.org/?p=94917>
Posted on September 19, 2017 5:59 pm<http://electionlawblog.org/?p=94917> by Rick Hasen<http://electionlawblog.org/?author=3>

Cynthia Tucker<http://www.record-bee.com/article/NQ/20170919/LOCAL1/170919828> column:

With Donald J. Trump as president, however, the GOP has abandoned any pretense of subtlety. Trump has plumped up the myth of voter fraud with outrageous accusations, incredible theories and charges that could not possibly be true. He claims that he lost the popular vote because of massive voter fraud, an accusation that makes the wild conspiracies on ABC’s “Scandal” seem like reports from “60 Minutes.”

Then there’s his Election Integrity Commission, a panel whose title turns the truth on its head. Charged with ferreting out the massive voter fraud that Trump invented, the panel is stacked with hacks who have spent decades trying to suppress the votes of people of color. The voter fraud commission is itself a fraud.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

The Sewanee Symposium: Enfranchising Equality: 150 years of the 15th Amendment<http://electionlawblog.org/?p=94915>
Posted on September 19, 2017 3:34 pm<http://electionlawblog.org/?p=94915> by Rick Hasen<http://electionlawblog.org/?author=3>

Very much looking forward to participating in this symposium,<http://www.sewanee.edu/law-symposium15/main-feature/home-feature.html> at the University of the South, Oct. 12-13. Historian Eric Foner is giving the keynote and I am excited!

I’ll be presenting Race or Party, Race as Party, or Party All the Time: Three Uneasy Approaches to Conjoined Polarization in Redistricting and Voting Cases, William and Mary Law Review(forthcoming 2018) (draft available<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912403>).
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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>

Chicago-Kent Symposium: The Supreme Court and American Politics<http://electionlawblog.org/?p=94913>
Posted on September 19, 2017 3:30 pm<http://electionlawblog.org/?p=94913> by Rick Hasen<http://electionlawblog.org/?author=3>

Very much looking forward to delivering the keynote address at this symposium<http://studentorgs.kentlaw.iit.edu/cklawreview/the-supreme-court-and-american-politics/> with a great lineup at Chicago-Kent on October 17. It will be a great homecoming, as I taught first at Chicago-Kent (1994-97).

In the keynote, I’ll be previewing some themes from my upcoming book, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption (forthcoming Yale University Press, March 2016).<http://yalebooks.yale.edu/book/9780300228649/justice-contradictions>

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Posted in Scalia<http://electionlawblog.org/?cat=123>, Supreme Court<http://electionlawblog.org/?cat=29>

Wisconsin Files Its SCOTUS Reply Brief in Partisan Gerrymandering Case<http://electionlawblog.org/?p=94911>
Posted on September 19, 2017 3:19 pm<http://electionlawblog.org/?p=94911> by Rick Hasen<http://electionlawblog.org/?author=3>

Read it here.<https://www.brennancenter.org/sites/default/files/legal-work/Gill_ReplyBriefforAppellants.pdf>
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“Has the Top Two Primary Elected More Moderates?”<http://electionlawblog.org/?p=94909>
Posted on September 19, 2017 12:03 pm<http://electionlawblog.org/?p=94909> by Rick Hasen<http://electionlawblog.org/?author=3>

Eric McGhee and Bors Shor<https://www.cambridge.org/core/journals/perspectives-on-politics/article/has-the-top-two-primary-elected-more-moderates/1F65856812342373F4A51B233E9BD593> in Perspectives on Politics:

Party polarization is perhaps the most significant political trend of the past several decades of American politics. Many observers have pinned hopes on institutional reforms to reinvigorate the political center. The Top Two primary is one of the most interesting and closely-watched of these reforms: a radically open primary system that removes much of the formal role for parties in the primary election and even allows for two candidates of the same party to face each other in the fall. Here we leverage the adoption of the Top Two in California and Washington to explore the reform’s effects on legislator behavior. We find an inconsistent effect since the reform was adopted in these two states. The evidence for post-reform moderation is stronger in California than in Washington, but some of this stronger effect appears to stem from a contemporaneous policy change—district lines drawn by an independent redistricting commission—while still more might have emerged from a change in term limits that was also adopted at the same time. The results validate some claims made by reformers, but question others, and their magnitude casts some doubt on the potential for institutions to reverse the polarization trend.
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Posted in political parties<http://electionlawblog.org/?cat=25>, political polarization<http://electionlawblog.org/?cat=68>, primaries<http://electionlawblog.org/?cat=32>, redistricting<http://electionlawblog.org/?cat=6>

--
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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