[EL] ELB News and Commentary 4/27/18

Rick Hasen rhasen at law.uci.edu
Fri Apr 27 07:39:52 PDT 2018


“House Intelligence Committee Releases Findings on Russian Election Interference”<http://electionlawblog.org/?p=98856>
Posted on April 27, 2018 7:35 am<http://electionlawblog.org/?p=98856> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/04/27/us/politics/house-intelligence-committee-russia-investigation-report.html?action=Click&contentCollection=BreakingNews&contentID=66892313&pgtype=sectionfront>

The House Intelligence Committee released on Friday a roughly 250-page report<https://docs.house.gov/meetings/IG/IG00/20180322/108023/HRPT-115-1.pdf> on Russia’s interference in the 2016 presidential election, laying out Republicans’ conclusion after a yearlong investigation that they had found no evidence that the Trump campaign aided Moscow’s efforts.

[Read the report<https://static01.nyt.com/files/2018/us/politics/20180427%20Intelligence%20Committee%20Report.pdf?authuser=1>.]

Their conclusions are certain to be attacked by Democrats on the committee, who have accused the Republicans of prematurely closing the investigation and failing to conduct it with the rigor that the subject called for out of a desire to protect President Trump. The committee also released dissenting views from the Democrats.

Adam Smith<https://twitter.com/asmith83/status/989868681806143489> on Twitter:
[View image on Twitter]<https://twitter.com/asmith83/status/989868681806143489/photo/1>[View image on Twitter]<https://twitter.com/asmith83/status/989868681806143489/photo/1>
[https://pbs.twimg.com/profile_images/965300716825915392/GysyGU7f_bigger.jpg]<https://twitter.com/asmith83>
<https://twitter.com/asmith83>
Adam Smith<https://twitter.com/asmith83>
✔@asmith83<https://twitter.com/asmith83>

<https://twitter.com/asmith83/status/989868681806143489>


A campaign finance recommendation in the House Russia report (which they say they're making because of the DNC/Fusion GPS stuff), p 127 https://docs.house.gov/meetings/IG/IG00/20180322/108023/HRPT-115-1.pdf …<https://t.co/SMr1X8MOg1>
7:07 AM - Apr 27, 2018<https://twitter.com/asmith83/status/989868681806143489>
·         <https://twitter.com/intent/like?tweet_id=989868681806143489>

·         <https://twitter.com/asmith83>
See Adam Smith's other Tweets<https://twitter.com/asmith83>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>


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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>


I Talked to June Grasso of Bloomberg Law About My Book on Justice Scalia’s Legacy<http://electionlawblog.org/?p=98854>
Posted on April 27, 2018 7:17 am<http://electionlawblog.org/?p=98854> by Rick Hasen<http://electionlawblog.org/?author=3>

I had a great conversation<https://www.bloomberg.com/news/audio/2018-04-26/rick-hasen-on-the-justice-of-contradictions-audio> with June Grasso of Bloomberg Law about my new book, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption.<https://www.amazon.com/Justice-Contradictions-Antonin-Politics-Disruption/dp/0300228643/ref=sr_1_1?ie=UTF8&qid=1516904231&sr=8-1&keywords=richard+l.+hasen>

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


“New Report: Many Election Day Lines Shorter in 2016, But Some Long Waits Remain”<http://electionlawblog.org/?p=98852>
Posted on April 27, 2018 7:14 am<http://electionlawblog.org/?p=98852> by Rick Hasen<http://electionlawblog.org/?author=3>

Release:

Fewer Americans waited in long lines to vote during 2016’s presidential election compared with 2012, but a significant number of polling places still experienced average wait times over 30 minutes, according to a new Bipartisan Policy Center report<http://link.bipartisanpolicy.org/c/4/?T=MTE3NDM3Mzc%3AMDItYjE4MTE3LWQ4MmIzYzYyYTAzZDRiYzJhMTQyNDRlNWFlZTczNDM4%3Acmhhc2VuQGxhdy51Y2kuZWR1%3AY29udGFjdC0yZGQ5Y2VkMjViYThlMjExYjEzYTc4ZTNiNTA4MzRiOC1hYmI0OWNjOGI1MzI0NGEzOWM5YjdiOGUzMjE2OWVmNw%3AZmFsc2U%3AMg%3A%3AaHR0cHM6Ly9iaXBhcnRpc2FucG9saWN5Lm9yZy9saWJyYXJ5L2ltcHJvdmluZy10aGUtdm90ZXItZXhwZXJpZW5jZS1yZWR1Y2luZy1wb2xsaW5nLXBsYWNlLXdhaXQtdGltZXMtYnktbWVhc3VyaW5nLWxpbmVzLWFuZC1tYW5hZ2luZy1wb2xsaW5nLXBsYWNlLXJlc291cmNlcy8_X2NsZGVlPWNtaGhjMlZ1UUd4aGR5NTFZMmt1WldSMSZyZWNpcGllbnRpZD1jb250YWN0LTJkZDljZWQyNWJhOGUyMTFiMTNhNzhlM2I1MDgzNGI4LWFiYjQ5Y2M4YjUzMjQ0YTM5YzliN2I4ZTMyMTY5ZWY3JnV0bV9zb3VyY2U9Q2xpY2tEaW1lbnNpb25zJnV0bV9tZWRpdW09ZW1haWwmdXRtX2NhbXBhaWduPVByZXNzJTIwVXBkYXRlJTIwJTdDJTIwRGVtb2NyYWN5JTIwUHJvamVjdCZlc2lkPTA2ZjhhNzQ1LTExNGEtZTgxMS04MTE5LWM0MzQ2YmRjMjJmMQ&K=eXx13vDnotegznO41KoBwQ> published today.
BPC and the CalTech/MIT Voting Technology Project conducted the largest-ever national study of polling place wait times on Election Day 2016, with poll workers measuring lines at 4,006 voting precincts in 88 jurisdictions across 11 states, including swing states Michigan, Virginia, and Florida. Studied locations accounted for about 8 percent of all votes cast in the 2016 presidential election.

Notably, states that had the longest wait times in 2012 like Michigan, Florida, and Virginia saw the biggest improvements in 2016.


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Posted in election administration<http://electionlawblog.org/?cat=18>


“Trump pushes to swap Electoral College for popular vote”<http://electionlawblog.org/?p=98850>
Posted on April 26, 2018 3:08 pm<http://electionlawblog.org/?p=98850> by Rick Hasen<http://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/story/2018/04/26/trump-electoral-college-popular-vote-555148>

President Donald Trump on Thursday voiced support for doing away with the Electoral College for presidential elections in favor of a popular vote because the latter would be “much easier to win.”

The president’s support for a popular-vote presidential election came as an aside during a freewheeling Thursday morning interview with “Fox & Friends,” the Fox News morning show he is known to watch and from which he receives almost unflinchingly positive coverage. Trump made the remark amid a larger point about public figures who publicly support him in turn benefiting from a boost of popularity from Trump supporters.

Meanwhile, the National Popular Vote compact moved closer to approval<http://www.courant.com/politics/hc-pol-house-debate-national-popular-vote-20180425-story.html> in Connecticut.
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Posted in electoral college<http://electionlawblog.org/?cat=44>


FEC Commissioners Petersen and Hunter Attack FEC Commissioner Weintraub<http://electionlawblog.org/?p=98848>
Posted on April 26, 2018 3:05 pm<http://electionlawblog.org/?p=98848> by Rick Hasen<http://electionlawblog.org/?author=3>

In footnote 2 of this documen<https://www.documentcloud.org/documents/4448253-CREWvFECStatement.html>t, the two Republican FEC Commissioners attack Democratic FEC Commissioner @EllenLWeintraub<https://twitter.com/EllenLWeintraub>, calling her work encouraging CREW to sue in Court and other actions “ill-advised public statements on social media and attempts to obstruct routine Commission operations.”

Next year’s holiday party is going to be something else.
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Posted in federal election commission<http://electionlawblog.org/?cat=24>


“Democratic Sen. Robert Menendez is ‘severely admonished’ by Ethics Committee, ordered to repay gifts”<http://electionlawblog.org/?p=98846>
Posted on April 26, 2018 1:47 pm<http://electionlawblog.org/?p=98846> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/powerpost/democratic-sen-robert-menendez-is-severely-admonished-by-ethics-committee-ordered-to-repay-gifts/2018/04/26/2bff0dc6-4978-11e8-9072-f6d4bc32f223_story.html?utm_term=.01acba7234d1>

The Senate Ethics Committee said Thursday that Sen. Robert Menendez (D-N.J.), who avoided conviction in a federal corruption trial last year, violated federal law and Senate rules in accepting unreported gifts from a friend and political ally whom Menendez used his office to assist.

In a four-page “letter of admonition<https://www.ethics.senate.gov/public/index.cfm/files/serve?File_id=49C12C75-7A26-4FE6-B070-19FCEF4D7532>,” the six members of the panel ordered Menendez to pay back the gifts he received from Salomon Melgen, a Florida eye doctor, and said that he is “hereby severely admonished.”

“Your assistance to Dr. Melgen under these circumstances demonstrated poor judgment, and it risked undermining the public’s confidence in the Senate,” the letter reads. “As such, your actions reflected discredit upon the Senate.”

The Ethics Committee findings complete a winding, six-year saga that saw Menendez accused of corrupt dealings to benefit a political donor, Melgen, only to see his prosecution end in a mistrial last November after 10 weeks in court.

After the mistrial, most jurors told reporters that they believed Menendez had not committed the crimes that federal prosecutors alleged and a grand jury had charged him with. On Jan. 31, a judge dismissed all charges against Menendez after prosecutors decided not to pursue a second trial.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, conflict of interest laws<http://electionlawblog.org/?cat=20>, ethics investigations<http://electionlawblog.org/?cat=42>


Facebook’s Definition of Issue Ads is Broad Enough to Encompass Lots of Non-Election Related Advertising<http://electionlawblog.org/?p=98844>
Posted on April 26, 2018 11:16 am<http://electionlawblog.org/?p=98844> by Rick Hasen<http://electionlawblog.org/?author=3>

Via the Intercept<https://theintercept.com/2018/04/26/facebook-is-demanding-personal-information-from-political-advertisers-raising-privacy-concerns/>, comes this new definition<https://www.facebook.com/business/help/1838453822893854?ref=fbb_blog> from Facebook of what counts as a “political ad” which will count for certain new vetting procedures (my emphasis below):



A “political ad” is defined as an ad that:
·         Is made by or on behalf of a candidate for public office, a political party, or a political action committee;
·         Advocates for the outcome of an election to public office or relates to the voting in an election for public office;
·         Relates to any national legislative issue of public importance in the place where the ad is being run; or
·         Is otherwise regulated as political or election-related advertising

Advertisers are required to comply with applicable law — and that includes election-related laws that require disclosures. We’re providing new tools that will bring greater transparency around the ads on Facebook. While it’s up to every advertiser to assess their own legal obligations, we hope that these tools will help candidates, political parties and other organizations provide people with more information about who’s behind the ads they’re seeing.

On why this matters and the difficulties ahead, here is my earlier post:<http://electionlawblog.org/?p=98577>

(How) Will Facebook Self-Regulate “Issue Ads” Intended to Affect U.S. Elections? The Details Matter a Lot
Posted on April 7, 2018 10:18 am<http://electionlawblog.org/?p=98577> by Rick Hasen<http://electionlawblog.org/?author=3>

Via the NY Times comes news<https://www.nytimes.com/2018/04/06/business/facebook-verification-ads.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=9&pgtype=sectionfront> that Facebook will not only support passage of the Honest Ads Act<https://www.congress.gov/bill/115th-congress/senate-bill/1989>(currently pending in committee where it may stay), but will also self-regulate “issue ads.” The self-regulation is important, because it may be that some government regulation in this area is unconstitutional. Still, the details will matter, and it remains to be seen if Facebook will have the interest and patience in coming up with full and effective self-regulation.  I explain why in this post.

Not all ads that the Russian government and others ran in the 2016 elections intended to influence the elections would be governed by federal law barring foreign nationals from spending money in U.S. elections. Those that do not expressly advocate the election or defeat of a candidate are not barred unless they appear on television or radio close to the election and feature the candidate’s name or likeness. So when Russians ran an ad<https://slate.com/news-and-politics/2018/02/the-campaign-finance-loophole-that-could-make-the-next-russian-attack-perfectly-legal.html> saying “Hillary is a Satan” close to the election it would not be covered. The Honest Ads Act would extend the rules applying to television and radio to digital ads, and so “Hillary is a Satan” would be covered and the Russian government could not pay for such ads close to the election.

But as the Times explains <https://www.nytimes.com/2018/04/06/business/facebook-verification-ads.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news>  lots of the Russian ads did not even mention a candidate but were intended to influence the election:

Law enforcement officials say Russian agents, looking to stir discord, posed as Americans with Facebook pages that represented a range of political viewpoints, from “Blacktivist” to “Heart of Texas.”…

The policy builds on an announcement in October that Facebook would start verifying advertisers running “election-related” ads<https://newsroom.fb.com/news/2017/10/update-on-our-advertising-transparency-and-authenticity-efforts/>. Critics said that would not capture many of the ads run by Russian agents around the 2016 election, which focused on issues rather than specific elections. One Internet Research Agency ad, for example, featured a Confederate flag<https://www.nytimes.com/2017/11/01/us/politics/russia-2016-election-facebook.html> and said, “The South will rise again!”

Facebook’s move on Friday would address those issue ads. Most of the Russian ads focused on “divisive political issues like guns, L.G.B.T. rights, immigration and racial issues,” Senator Mark Warner, Democrat of Virginia, said in a statement.

“That’s why today’s announcement by Facebook is so important,” he added.

I explained in pieces in Politico<https://www.politico.com/magazine/story/2017/09/26/russian-facebook-ads-regulation-215647> and Slate<https://slate.com/news-and-politics/2018/02/the-campaign-finance-loophole-that-could-make-the-next-russian-attack-perfectly-legal.html> that it is not clear that the conservative Supreme Court will allow the government to bar foreign spending on issue ads that do not mention a candidate by name. (For the full academic discussion of the relevant constitutional cases and regulations, see my recently published piece, Cheap Speech and What It has Done (to American Democracy)<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3017598>, 16 First Amendment Law Review 200, 217-222 (2018)).

But Facebook is not a government actor, and it can choose to exclude these ads if paid for by foreign governments, or require disclosure of them. There’s no First Amendment problem with that at all, but it’s not clear exactly how this will work.

Here’s the relevant part of yesterday’s announcement<https://newsroom.fb.com/news/2018/04/transparent-ads-and-pages/> from Facebook’s Rob Goldman and Alex Himel:

Last October, we announced that only authorized advertisers will be able to run electoral ads on Facebook or Instagram. And today, we’re extending that requirement to anyone that wants to show “issue ads” — like political topics that are being debated across the country. We are working with third parties to develop a list of key issues, which we will refine over time. To get authorized by Facebook, advertisers will need to confirm their identity and location. Advertisers will be prohibited from running political ads — electoral or issue-based — until they are authorized.

In addition, these ads will be clearly labeled in the top left corner as “Political Ad.” Next to it we will show “paid for by” information. We started testing the authorization process this week, and people will begin seeing the label and additional information in the US later this spring…

.We know we were slow to pick-up foreign interference in the 2016 US elections. Today’s updates are designed to prevent future abuse in elections — and to help ensure you have the information that you need to assess political and issue ads, as well as content on Pages. By increasing transparency around ads and Pages on Facebook, we can increase accountability for advertisers — improving our service for everyone.

Here’s a hypothetical to flesh out some issues. Let’s assume that Facebook, working with these third parties, can successfully identify key issues like “Black Lives Matter,” immigration, or gay rights and religious liberties. Suppose an ad comes in from a group formed in the U.S. called “Traditional Values Coalition” or “Progress Now!” running ads on LGBT issues.
1.      Will Facebook require these groups to disclose their donors? What if their donors consist of a series of shell groups, hiding the real identity of the group? How will Facebook know that they’ve figured out who the real donors are?
2.      What happens if Facebook determines that some of the donors are foreign? Will it apply a percentage test?
3.      Will foreign ads simply be subject to disclosure regulation, or will the ads be rejected if from a foreign source even if federal law does not bar the ads (such as “Hillary is a Satan” if the Honest Ads Act does not apply, or LGBT ads if it does apply)?
4.      What if the material is from a media corporation that is a foreign entity, like The Guardian? (Suppose The Guardian editorializes “Don’t vote for Trump.”) if so, how will it decide who counts as the media?

There are many more questions, but Facebook has some difficult decisions to make if it goes ahead with this.
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Posted in campaigns<http://electionlawblog.org/?cat=59>


“Trump judicial nominee says he’s personally witnessed voter fraud”<http://electionlawblog.org/?p=98842>
Posted on April 26, 2018 10:40 am<http://electionlawblog.org/?p=98842> by Rick Hasen<http://electionlawblog.org/?author=3>

Washington Times:<https://www.washingtontimes.com/news/2018/apr/25/michael-truncale-trump-judicial-pick-saw-voter-fra/>

Michael J. Truncale, one of President Trump<https://www.washingtontimes.com/topics/donald-trump/>’s judicial nominees, said Wednesday he’s personally witnessed incidents of voter fraud while serving as an election judge in Texas.

He made the revelation under questioning by Sen. Mazie Hirono, Hawaii Democrat, who objected to comments Mr. Truncale had made in 2014 about the prevalence of voter fraud. She said the problem is not widespread.

Mr. Truncale, a Texas lawyer who previously ran for Congress in 2012 and is now Mr. Trump<https://www.washingtontimes.com/topics/donald-trump/>’s pick for a district judgeship, said he couldn’t say how widespread the problem is, but said he’d seen instances in Jefferson County.

“I was once an election judge and had people from other states come by wanting to vote and I denied their ballot because they weren’t even Texans, or properly registered, so I’ve seen that,” Mr. Truncale said.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>


Rick Pildes: “Why gerrymandering is going to get even worse”<http://electionlawblog.org/?p=98840>
Posted on April 26, 2018 7:59 am<http://electionlawblog.org/?p=98840> by Rick Hasen<http://electionlawblog.org/?author=3>

Smart Rick Pildes<https://www.washingtonpost.com/news/monkey-cage/wp/2018/04/26/yes-gerrymandering-is-getting-worse-and-will-get-worse-still-this-explains-why/?utm_term=.007fbcb59d6b> at the Monkey Cage:

We have had only two redistricting cycles (2000 and 2010) in this transformed political terrain. When the stakes are so high that partisan control of the House might hang in the balance, more aggressive partisan efforts to gerrymander will, not surprisingly, flourish….

The modern era of regular decennial redistricting began in the 1970s, when every state began to have to redraw districts every decade, after the new census, to meet the equal-population requirements of the Supreme Court’s one-vote, one-person doctrine. Since then, we have not had a redistricting cycle with as virulent a combination of incentive and capacity to gerrymander.

What’s more, our politics are so polarized that partisan political conflicts have come to seem existential. Each party believes that, if the other gains control, the very identity of the United States will be compromised. The perceived stakes could not be much higher….

On top of these structural changes in politics, other more widely recognized factors contribute to making gerrymandering worse today. Technological changes make precision gerrymandering easier. Voters are far more polarized, which makes gerrymanders more reliable and enduring because voting patterns are more stable and easier to predict.

But while the ability to gerrymander successfully has improved, the transformation in the structure of our politics has changed even more dramatically. Control of our political institutions has been evenly divided over an exceptionally sustained period. And the nature of our hyperpolarized, existential politics has raised the stakes even more.  It’s no wonder that we are seeing such aggressive partisan gerrymandering in so many places.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


--
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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