[EL] ELB News and Commentary 9/25/17

[Rick Hasen]

“Facebook, Google and Twitter face proposed bill targeting shadowy political ads”<http://electionlawblog.org/?p=94977>
Posted on September 24, 2017 9:04 pm<http://electionlawblog.org/?p=94977> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo:<https://www.washingtonpost.com/news/the-switch/wp/2017/09/22/facebook-google-and-twitter-could-face-a-new-law-targeting-shadowy-political-ads/?hpid=hp_hp-cards_hp-card-technology%3Ahomepage%2Fcard&utm_term=.00cf7fd77f01>
Democratic lawmakers are pushing for new legislation that would require greater disclosure of political ads that run on Internet platforms, despite a pledge by Facebook<https://www.washingtonpost.com/business/technology/facebook-to-turn-over-thousands-of-russian-ads-to-congress-reversing-decision/2017/09/21/9790b242-9f00-11e7-9083-fbfddf6804c2_story.html?utm_term=.b9ff59029817> chief executive Mark Zuckerberg that the company will voluntarily pull back the curtain on political advertising on the social network.
Sens. Amy Klobuchar (Minn.) and Mark R. Warner (Va.) urged colleagues Thursday to support a bill that would create new transparency requirements for platforms that run political ads online akin to those already in place for TV stations, according to a letter obtained by The Washington Post.
Also from WaPo: After Zuckerberg dismissed fake news on Facebook as a factor in the election, Obama tried to send a wake-up call<https://www.washingtonpost.com/business/economy/obama-tried-to-give-zuckerberg-a-wake-up-call-over-fake-news-on-facebook/2017/09/24/15d19b12-ddac-4ad5-ac6e-ef909e1c1284_story.html?hpid=hp_hp-top-table-main_facebookzuck-825pm%3Ahomepage%2Fstory&utm_term=.da5aedbec267>
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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>


“Michigan Governor Unleashes ‘Citizens United on Steroids'”<http://electionlawblog.org/?p=94975>
Posted on September 24, 2017 7:03 pm<http://electionlawblog.org/?p=94975> by Rick Hasen<http://electionlawblog.org/?author=3>
Justin Miller<https://theintercept.com/2017/09/24/michigan-governor-unleashes-citizens-united-on-steroids/> for The Intercept.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“Kobach criticizes New Hampshire election law, but Kansas officials say our law is much the same”<http://electionlawblog.org/?p=94973>
Posted on September 24, 2017 1:03 pm<http://electionlawblog.org/?p=94973> by Rick Hasen<http://electionlawblog.org/?author=3>
Lawrence Journal-World reports.<http://www2.ljworld.com/news/2017/sep/24/kobach-criticizes-new-hampshire-election-law-kansa/>

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Posted in election administration<http://electionlawblog.org/?cat=18>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>


“The Russians are hacking. Luckily the Trump voter fraud commission isn’t in charge”<http://electionlawblog.org/?p=94971>
Posted on September 24, 2017 10:13 am<http://electionlawblog.org/?p=94971> by Rick Hasen<http://electionlawblog.org/?author=3>
Michael McDonald has written this oped<https://www.usatoday.com/story/opinion/2017/09/23/forget-trump-fraud-commission-cybersecurity-experts-will-protect-voting-michael-mcdonald-column/686527001/> for USA Today, with the subhead: “The Kris Kobach group is clownish. But some seriously competent people are mobilizing to protect our elections.”
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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>


“Seventh Circuit Agrees with Lower Court that Illinois Full-Slate Law is Unconstitutional”<http://electionlawblog.org/?p=94969>
Posted on September 24, 2017 10:09 am<http://electionlawblog.org/?p=94969> by Rick Hasen<http://electionlawblog.org/?author=3>
BAN<http://ballot-access.org/2017/09/23/seventh-circuit-agrees-with-lower-court-that-illinois-full-slate-law-is-unconstitutional/>:
On September 22, the Seventh Circuit issued a 12-page opinion<http://ballot-access.org/wp-content/uploads/2017/09/IllinoisBallotaccessOpinionfrom7thCircuit.pdf> in Libertarian Party of Illinois v Scholz, 16-1667. The opinion says the U.S. District Court was correct when it invalidated the Illinois “full-slate” ballot access restriction. The law, which has existed since 1931, says a newly-qualifying party must run a full slate of candidates or it can’t run any. The law has made life miserable for minor parties in Illinois for 86 years, and there have been many attempts to have it declared unconstitutional in the past, but they had all failed. The law did not apply to qualified parties.
This current case took years to reach this point. It was filed in 2012. The attorney who filed the case, Gary Sinawski, had died in the meantime, and the party had had to find a new attorney to carry on the case, David Schoen. Both of them did an excellent job.
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Posted in ballot access<http://electionlawblog.org/?cat=46>


“Kris Kobach Can Prove U.S. Elections Are Messy, But That’s Not The Same Thing As Fraudulent”<http://electionlawblog.org/?p=94966>
Posted on September 23, 2017 6:31 pm<http://electionlawblog.org/?p=94966> by Rick Hasen<http://electionlawblog.org/?author=3>
538:<https://fivethirtyeight.com/features/kris-kobach-can-prove-u-s-elections-are-messy-but-thats-not-the-same-thing-as-fraudulent/?ex_cid=story-twitter>
When Kobach employs these proxies as proof of voter fraud, though, he is implicitly suggesting that changes need to be made to the voting system to protect its integrity, such as ensuring that the same name never turns up on multiple registries and voters never use out-of-state licenses at the polls. But those irregularities exist because of the fundamental American values the commission is dedicated to protecting: You can’t easily and swiftly clean up registry errors without disenfranchising millions of voters. And you can’t set up a uniform, nationalized voter registry in a country whose founding values are based on limited federal control.

The problem with proxies is that they do more to demonstrate the complex nature of American values than they do to prove our elections are rigged.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>


“10 Months After Election Day, Feds Tell States More About Russian Hacking”<http://electionlawblog.org/?p=94964>
Posted on September 23, 2017 12:47 pm<http://electionlawblog.org/?p=94964> by Rick Hasen<http://electionlawblog.org/?author=3>
Pam Fessler<http://www.npr.org/2017/09/22/552956517/tktk?live=1> for NPR:
On Friday afternoon, DHS placed individual calls to the top election official in each state and six U.S. territories to fill them in on what information the agency has about election hacking attempts in their state last year. It will be up to the election officials to decide whether to share what they learn with the public….
The calls are one sign of an improving relationship between election officials and DHS over how to deal with the cybersecurity threat.
State and local officials balked when Obama Homeland Security Secretary Jeh Johnson said in January he planned to designate elections as part of the nation’s critical infrastructure, which meant additional security assistance from the federal government. Election officials feared the federal government would start telling states how to run their elections, which are traditionally under local control.
In recent months, DHS and election officials have been meeting regularly and just last week agreed to set up a 28-member coordinating council — to include three federal agency representatives and 25 state and local election officials — to share security information and assistance.
See also this statement <http://www.commoncause.org/press/press-releases/21-states-election-infrastructure-targeted.html> from Common Cause.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>


“Lawmakers begin talks about how to replace Georgia’s aging vote system”<http://electionlawblog.org/?p=94962>
Posted on September 23, 2017 12:43 pm<http://electionlawblog.org/?p=94962> by Rick Hasen<http://electionlawblog.org/?author=3>
AJC reports.<http://www.myajc.com/news/state--regional-govt--politics/lawmakers-begin-talks-about-how-replace-georgia-aging-vote-system/A1e4ryglB9XgSZv1Dbb2GJ/?ecmp=newspaper_email&>
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Posted in election administration<http://electionlawblog.org/?cat=18>, voting technology<http://electionlawblog.org/?cat=40>


“Supreme Court case offers window into how representatives choose their constituents”<http://electionlawblog.org/?p=94960>
Posted on September 23, 2017 12:41 pm<http://electionlawblog.org/?p=94960> by Rick Hasen<http://electionlawblog.org/?author=3>
Bob Barnes deep dive <https://www.washingtonpost.com/politics/courts_law/supreme-court-case-offers-window-into-how-representatives-choose-their-constituents/2017/09/22/28732b00-98d0-11e7-87fc-c3f7ee4035c9_story.html?utm_term=.8576a4fbd08c&wpmk=MK0000200> on how the Wisconsin gerrrymander came to be.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


“Open up the black box of political advertising”<http://electionlawblog.org/?p=94958>
Posted on September 23, 2017 12:38 pm<http://electionlawblog.org/?p=94958> by Rick Hasen<http://electionlawblog.org/?author=3>
Chris Elmendorf, Ann Ravel and Abby Wood in SF Chronicle<http://www.sfchronicle.com/opinion/openforum/article/Open-up-the-black-box-of-political-advertising-12221372.php&cmpid=twitter-premium>:
Micro-targeted political advertising raises two sets of concerns:
It’s likely to exacerbate political polarization, and the erosion of broadly shared norms against hateful ideologies such as white supremacy. Political scientists have long thought that candidates refrain from explicitly racist appeals <http://www.annualreviews.org/doi/abs/10.1146/annurev.polisci.12.060107.154208> because of the risk of backlash. But if no one but racists will hear a racial campaign appeal, there’s not much incentive to hold back.
Those who would challenge false, hateful or misleading advertisements are rendered mute. They don’t know what’s been said, or to whom, because micro-targeted advertising happens out of public view. It’s only through the efforts of diligent reporters <https://www.propublica.org/article/facebook-enabled-advertisers-to-reach-jew-haters> and special counsel Robert Mueller <https://www.wsj.com/articles/facebook-gave-special-counsel-robert-mueller-more-details-on-russian-ad-buys-than-congress-1505514552> that we have even the foggiest sense of the ads placed and targeted through Internet platform companies such as Facebook. By contrast, in the days when broadcast television was the advertising medium of choice, it was easy for political candidates to learn what their opponents were saying and to buy competing ads that would reach the same audience. Federal law provided a helping hand, requiring local broadcasters to maintain public records of paid political advertising<https://www.law.cornell.edu/cfr/text/47/73.3527>, thus revealing the media markets in which the ads were run.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>


“Congress should protect political speech by ignoring Disclose Act”<http://electionlawblog.org/?p=94956>
Posted on September 23, 2017 12:36 pm<http://electionlawblog.org/?p=94956> by Rick Hasen<http://electionlawblog.org/?author=3>
Brad Smith and Eric Wang oped<http://thehill.com/opinion/campaign/351866-congress-should-protect-political-speech-by-ignoring-disclose-act> in The Hill:
The Disclose Act of 2017<https://www.congress.gov/115/bills/s1585/BILLS-115s1585is.pdf> introduced by Whitehouse would upend the existing law by categorically prohibiting any political activity by a corporation or subsidiary if more than 20 percent of its voting shares are foreign-owned. This percentage ownership limit is a smokescreen, however, as the bill also would much more severely prohibit any corporate political activity if a foreign national “has the power to direct, dictate, or control the [corporation’s] decisionmaking process.” Because the owner of even one share of a publicly traded corporation generally has such power through a shareholders meeting or a proxy vote, this provision likely would strip away the political speech rights of any public company with even one foreign shareholder.
In a vacuum, perhaps we could be accused of over-reading this extreme result into the bill. But FEC Commissioner Ellen Weintraub outlined this very same legal approach in a New York Times opinion<https://www.nytimes.com/2016/03/30/opinion/taking-n-citizens-united.html> last year as a way to counteract the Supreme Court’s 2010 Citizens United decision<https://www.oyez.org/cases/2008/08-205>, which permitted certain corporate political activity.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“Facebook Is Now The Federal Election Commission, But With More Secrets”<http://electionlawblog.org/?p=94954>
Posted on September 23, 2017 12:31 pm<http://electionlawblog.org/?p=94954> by Rick Hasen<http://electionlawblog.org/?author=3>
Paul Blumenthal<http://www.huffingtonpost.com/entry/facebook-fec-election-ads_us_59c4251be4b0cdc773300bf8> for HuffPo:
In what looked like a presidential address with a distinct Silicon Valley aesthetic, Facebook CEO Mark Zuckerberg addressed his private online nation of 2 billion users on Thursday from his glass-walled office space. He went live to explain how Facebook will henceforth respond<https://www.facebook.com/zuck/posts/10104052907253171> to efforts by nation-states and private actors to use the social media platform to influence U.S. elections.
Zuckerberg detailed a nine-point plan. The most important of these new policies involves a requirement that “pages” disclose which ads they have purchased to run elsewhere on Facebook. Under federal law, online electoral ads are not currently required to provide the same level of disclosure or disclaimers as television and print ads do.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>


“American Democracy Is Drowning in Money”<http://electionlawblog.org/?p=94952>
Posted on September 23, 2017 12:24 pm<http://electionlawblog.org/?p=94952> by Rick Hasen<http://electionlawblog.org/?author=3>
Celestine Bohlen <https://www.nytimes.com/2017/09/20/opinion/democracy-drowning-cash.html> for NYT Opinion..
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“At Menendez Trial, Legal Wrestling Over Definition of ‘Constituent’”<http://electionlawblog.org/?p=94950>
Posted on September 23, 2017 12:22 pm<http://electionlawblog.org/?p=94950> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2017/09/20/nyregion/senator-robert-menendez-definition-of-constituent.html?mcubz=1&_r=0>
The prosecution, citing Black’s Law Dictionary, argued in a brief filed on Tuesday that “the straightforward answer is that Senator Menendez’s constituents are the New Jerseyans that he was elected to represent in the United States Senate.”
But the defense, in a brief that was also filed Tuesday, claimed that the term was significantly amorphous and that wrestling with its meaning was “not a legal question for the court to answer” but rather one for the jury to determine, “because the word potentially bears on defendants’ state of mind.”
In its argument, the defense pointed to the lack of an existing legal or constitutional definition of the term, and sought to differentiate among the people represented by a senator.
“In particular, Senator Menendez’s attention to cultural minorities and underrepresented communities, particularly Hispanic-Americans, as well as immigration issues generally, exemplifies his focus on ethnic constituencies and issue constituencies whose members are not limited to New Jersey residents,” according to the defense’s brief, which was submitted by lawyers for Mr. Menendez and Dr. Melgen.
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Posted in campaigns<http://electionlawblog.org/?cat=59>


“Snyder approves unlimited super PAC cash”<http://electionlawblog.org/?p=94948>
Posted on September 20, 2017 1:51 pm<http://electionlawblog.org/?p=94948> by Rick Hasen<http://electionlawblog.org/?author=3>
Ugh via Detroit News:<http://www.detroitnews.com/story/news/politics/2017/09/20/snyder-unlimited-super-pac-cash/105822332/>
Michigan Gov. Rick Snyder on Wednesday signed legislation letting political candidates raise unlimited money for super political action committees just a day after the Legislature approved the controversial plan.
With Snyder’s blessing, political candidates can now raise unlimited money for super PACs that could then pour unlimited amounts of money back into committees that a candidate creates or that support the candidate.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


NYT and WaPo Run Story Suggesting Trump Nominee May Have Committed Voter Fraud, But It Might Have Been Honest Mistake<http://electionlawblog.org/?p=94945>
Posted on September 20, 2017 1:46 pm<http://electionlawblog.org/?p=94945> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2017/09/20/us/politics/voter-fraud-trump-nominee-virginia-maryland-jeffry-gerrish.html>
Documents indicate that Jeffrey Gerrish, the president’s pick to be a deputy United States Trade Representative, moved from Virginia to Maryland last year, but opted in November to vote in the more competitive state of Virginia than his bright blue new home.
(WaPo with similar story<https://www.washingtonpost.com/news/post-politics/wp/2017/09/20/trump-trade-nominee-voted-in-virginia-several-months-after-moving-to-maryland/?utm_term=.2a4b3796f815>.)
BUT:
It is a misdemeanor in Virginia to vote if you are not a resident of the state. The commonwealth does carve out grace period<https://law.lis.virginia.gov/vacode/title24.2/chapter4/section24.2-402/> for residents who move out of the state within 30 days of a presidential election, allowing them to vote in their old precinct only in the contest for president.
Mr. Gerrish’s move does not appear to have fallen in that grace period. Records show that he sold a Fairfax, Va., home in July 2016 and purchased a home in Montgomery County, Md., just across the state line, the same month. Mr. Gerrish did not register to vote in Maryland until February of this year, according to state records.
A Trump administration official, who asked for anonymity to discuss the case in detail, said that Mr. Gerrish had a Virginia driver’s license at the time of the election and was under the impression that the state granted a longer grace period for former residents. He had lived there for more than a decade before moving, the official said.
As with many cases where people break election rules, it is often inadvertence, not malfeasance, which explains what happened. That could well be true here.
Doesn’t mean officials shouldn’t look for it. But we should be cautious about throwing the book at people who commit honest mistakes.
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Posted in election administration<http://electionlawblog.org/?cat=18>


“Exclusive: Russians Appear to Use Facebook to Push Trump Rallies in 17 U.S. Cities”<http://electionlawblog.org/?p=94943>
Posted on September 20, 2017 9:18 am<http://electionlawblog.org/?p=94943> by Rick Hasen<http://electionlawblog.org/?author=3>
Daily Beast:<http://www.thedailybeast.com/russians-appear-to-use-facebook-to-push-pro-trump-flash-mobs-in-florida>
Suspected Russia propagandists on Facebook<http://www.thedailybeast.com/russias-facebook-fake-news-could-have-reached-70-million-americans> tried to organize more than a dozen pro-Trump rallies in Florida during last year’s election, The Daily Beast has learned.
The demonstrations—at least one of which was promoted online by local pro-Trump activists— brought dozens of supporters together in real life. They appear to be the first case<http://rover.ebay.com/rover/13/0/19/DealFrame/DealFrame.cmp?bm=647&BEFID=1718&aon=%5E1&MerchantID=425656&crawler_id=425656&dealId=Xw4qV1E6i6SkSjehHo5kJQ%3D%3D&url=https%3A%2F%2Fwww.webstaurantstore.com%2Fcal-mil-241-s-classic-three-tier-acrylic-display-case-with-front-and-rear-doors-13-1-2-x-22-x-21%2F211241S.html%3Futm_source%3Dshopping.com%26utm_medium%3Dcpc%26utm_term%3D211241S%26utm_campaign%3Dsmallwares&linkin_id=8058742&Issdt=170920115217&searchID=p42.06847248469485d9fcc2&DealName=Cal-Mil+241-S+Classic+Three+Tier+Acrylic+Display+Case+with+Front+and+Rear+Doors+-+13+1%2F2+x+22+x+21&dlprc=304.99&AR=2&NG=3&NDP=5&PN=1&ST=7&FPT=DSP&NDS=&NMS=&MRS=&PD=&brnId=14305&IsFtr=0&IsSmart=0&op=&CM=&RR=2&IsLps=0&code=&acode=649&category=&HasLink=&ND=&MN=&GR=&lnkId=&SKU=211241S> of Russian provocateurs successfully mobilizing Americans over Facebook in direct support of Donald Trump<http://www.thedailybeast.com/keyword/donald-trump>.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>, social media and social protests<http://electionlawblog.org/?cat=58>



--
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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