[EL] ELB News and Commentary 8/16/18

Thu Aug 16 08:13:03 PDT 2018

“Federal Judge Strikes Down N.H.’s ‘Signature Mismatch’ Absentee Voting Law”<https://electionlawblog.org/?p=100671>
Posted on August 16, 2018 8:11 am<https://electionlawblog.org/?p=100671> by Rick Hasen<https://electionlawblog.org/?author=3>

NHPR on a very important election administration decision:<http://www.nhpr.org/post/federal-judge-strikes-down-nhs-signature-mismatch-absentee-voting-law#stream/0>

A federal judge has struck down a New hampshire law that allows pollworkers to toss out absentee ballots if they don’t believe the signature adequately matches the one used on other voting paperwork.

In a ruling issued Tuesday afternoon<http://mediad.publicbroadcasting.net/p/nhpr/files/201808/11712118636.pdf>, U.S. District Judge Landya McCafferty said “the current process for rejecting voters due to a signature mismatch fails to guarantee basic fairness,” because it gives moderators “sole, unreviewable discretion” to discard absentee ballots.

“It cannot be emphasized enough that the consequence of a moderator’s decision — disenfranchisement — is irremediable,” Judge McCafferty wrote.

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

“Surprise: This new index shows that U.S. elections were better run in 2016 than in 2012.”<https://electionlawblog.org/?p=100669>
Posted on August 16, 2018 8:08 am<https://electionlawblog.org/?p=100669> by Rick Hasen<https://electionlawblog.org/?author=3>

Charles Stewar<https://www.washingtonpost.com/news/monkey-cage/wp/2018/08/16/surprise-this-new-index-shows-that-u-s-elections-were-better-run-in-2016-than-in-2012/?utm_term=.0fbd7d3b9156>t for The Monkey Cage:

Forty-four states and the District of Columbia had higher overall scores in 2016 than in 2012. Six states declined, but by tiny amounts, often because of random variability. You can see the measures in the map below.
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Posted in election administration<https://electionlawblog.org/?cat=18>

“In a few hours, Gov. Colyer went from prepping for a recount to endorsing his rival”<https://electionlawblog.org/?p=100667>
Posted on August 16, 2018 8:01 am<https://electionlawblog.org/?p=100667> by Rick Hasen<https://electionlawblog.org/?author=3>

KC Star:<https://www.kansascity.com/news/politics-government/election/article216753550.html>

Colyer, who was sworn in as governor in January<https://www.kansascity.com/news/politics-government/article197678154.html>, faced a Friday deadline to file for a recount, a financially precarious decision because Kansas does not have automatic recounts in close races.

“I guess the governor changed his mind at the last moment there after a conversation between him and the LG (Lt. Gov. Tracey Mann) and it became clear that the votes were just not there and it’s best to just go ahead and get out for the sake of the party,” the official said. “Those congressional seats are going to be under siege and we’ve got to get united right away.”

Nineteen states and the District of Columbia have automatic recounts<http://www.ncsl.org/research/elections-and-campaigns/automatic-recount-thresholds.aspx> depending on the margin in a race, but in Kansas Colyer would have had to file a bond with the secretary of state’s office to pay for the cost of a recount. If he still trailed after a recount, he would have had to forfeit that money.
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Posted in campaigns<https://electionlawblog.org/?cat=59>

“Partisan Gerrymandering and Party Rights: Why Gill v. Whitford Undermines All Future Partisan-Gerrymandering Claims”<https://electionlawblog.org/?p=100665>
Posted on August 16, 2018 7:56 am<https://electionlawblog.org/?p=100665> by Rick Hasen<https://electionlawblog.org/?author=3>

Richard Raile for Fed Soc writes<https://fedsoc.org/commentary/publications/partisan-gerrymandering-and-party-rights-why-gill-v-whitford-undermines-all-future-partisan-gerrymandering-claims>.
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>

Speaking August 21 at ACS Event in San Diego: “Battle for the U.S. Supreme Court”<https://electionlawblog.org/?p=100663>
Posted on August 16, 2018 7:53 am<https://electionlawblog.org/?p=100663> by Rick Hasen<https://electionlawblog.org/?author=3>

Looking forward to talking about the Kavanaugh nomination down in San Diego.

RVSP link.<https://getinvolved.acslaw.org/component/events/event/36>
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>

“Can hackers tamper with your vote? Researchers show it’s possible in nearly 30 states”<https://electionlawblog.org/?p=100661>
Posted on August 16, 2018 7:49 am<https://electionlawblog.org/?p=100661> by Rick Hasen<https://electionlawblog.org/?author=3>

McClatchy reports. <https://www.sacbee.com/news/politics-government/article216610445.html>
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Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>

Google: “Introducing a new transparency report for political ads”<https://electionlawblog.org/?p=100659>
Posted on August 16, 2018 7:47 am<https://electionlawblog.org/?p=100659> by Rick Hasen<https://electionlawblog.org/?author=3>

Blog post:<https://www.blog.google/technology/ads/introducing-new-transparency-report-political-ads/>

We first launched our Transparency Report in 2010 with the goal of fostering important conversations about the relationship between governments, companies, and the free flow of information on the internet.

Over the years, we’ve evolved the report, adding sections about content removed from Google Search due to European privacy laws, adoption of encryption on websites (HTTPS), and more. And today, we’re adding another new section to our Transparency Report: Political Advertising on Google<https://transparencyreport.google.com/political-ads/overview>.

Earlier this year, we took important steps<https://www.blog.google/outreach-initiatives/public-policy/supporting-election-integrity-through-greater-advertising-transparency/> to increase transparency in political advertising. We implemented new requirements for any advertiser purchasing election ads on Google in the U.S.—these advertisers now have to provide a government-issued ID and other key information that confirms they are a U.S. citizen or lawful permanent resident, as required by law. We also required that election ads incorporate a clear “paid for by” disclosure. Now, we’re continuing to roll out new transparency features with the addition of the political advertising report as well as a new political Ad Library<https://transparencyreport.google.com/political-ads/library>.

As I understand it, these do not apply to issue ads at all. A very different strategy than Facebook.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>

“Better Safe Than Sorry: How Election Officials Can Plan Ahead to Protect the Vote in the Face of a Cyberattack”<https://electionlawblog.org/?p=100657>
Posted on August 16, 2018 7:43 am<https://electionlawblog.org/?p=100657> by Rick Hasen<https://electionlawblog.org/?author=3>

New Brennan Center report:<https://www.brennancenter.org/publication/better-safe-sorry>

Cyberattacks pose a growing threat to our election infrastructure, and while efforts to prevent these attacks are critical, it is as important to ensure preparations are in place to quickly and effectively recover if those efforts are unsuccessful. This toolkit is designed to help officials, advocates, and policy makers devise a strong contingency plan that will ensure eligible voters are able to exercise their right to vote and have those votes accurately counted.

Read the introduction<https://www.brennancenter.org/publication/better-safe-sorry#introduction>

Download the report<https://www.brennancenter.org/sites/default/files/publications/08.15.18_Better_Safe_Than_Sorry.pdf>

View the report<https://www.brennancenter.org/publication/better-safe-sorry#report>
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Posted in chicanery<https://electionlawblog.org/?cat=12>, election administration<https://electionlawblog.org/?cat=18>

“Elections Have Consequences, on Future Elections”<https://electionlawblog.org/?p=100655>
Posted on August 16, 2018 7:41 am<https://electionlawblog.org/?p=100655> by Rick Hasen<https://electionlawblog.org/?author=3>

Neil Makhija<https://www.theregreview.org/2018/08/10/makhija-elections-consequences-future-elections/> on Husted at the Regulatory Review.
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Posted in election administration<https://electionlawblog.org/?cat=18>, NVRA (motor voter)<https://electionlawblog.org/?cat=33>

“Disparate Impact, Unified Law”<https://electionlawblog.org/?p=100653>
Posted on August 15, 2018 10:24 pm<https://electionlawblog.org/?p=100653> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

Here is the abstract for a forthcoming article<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3232079> of mine in the Yale Law Journal on vote denial cases brought under Section 2 of the Voting Rights Act:

The last decade has seen the largest wave of franchise restrictions since the dark days of Jim Crow. In response to this array of limits, lower courts have recently converged on a two-part test under Section 2 of the Voting Rights Act. This test asks if an electoral practice (1) causes a disparate racial impact; (2) through its interaction with social and historical discrimination. Unfortunately, the apparent judicial consensus is only skin-deep. Courts bitterly disagree as to basic questions like whether the test applies to specific policies or systems of election administration; whether it is violated by all, or only substantial, disparities; and whether disparities refer to citizens’ compliance with a requirement or their turnout at the polls. The test also sits on thin constitutional ice. It comes close to finding fault whenever a measure produces a disparate impact, and so coexists uneasily with Fourteenth Amendment norms about colorblindness and Congress’s remedial authority.

The Section 2 status quo, then, is untenable. To fix it, this Article proposes to look beyond election law to the statutes that govern disparate impact liability in employment law, housing law, and other areas. Under these statutes, breaches are not determined using the two-part Section 2 test. Instead, courts employ a burden-shifting framework that first requires the plaintiff to prove that a particular practice causes a significant racial disparity; and then gives the defendant the opportunity to show that the practice is necessary to achieve a substantial interest. This framework, the Article argues, would answer the questions that have vexed courts in Section 2 cases. The framework would also ensure Section 2’s constitutionality by allowing jurisdictions to justify their challenged policies. Accordingly, the solution to Section 2’s woes would not require any leaps of doctrinal innovation. It would only take the unification of disparate impact law.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Bob Egelko Reviews My Book on Justice Scalia’s Legacy<https://electionlawblog.org/?p=100650>
Posted on August 15, 2018 12:15 pm<https://electionlawblog.org/?p=100650> by Rick Hasen<https://electionlawblog.org/?author=3>

Here<https://lareviewofbooks.org/article/originalism-on-trial/>‘s Bob Egelko’s review “Originalism on  Trial,” in the LA Review of Books<https://lareviewofbooks.org/article/originalism-on-trial/>, reviewing  my 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>.
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Posted in Scalia<https://electionlawblog.org/?cat=123>, Supreme Court<https://electionlawblog.org/?cat=29>

Today’s Must-Read (From Andy Kroll): “Documents Reveal Successful Cyberattack in California Congressional Race”<https://electionlawblog.org/?p=100648>
Posted on August 15, 2018 11:38 am<https://electionlawblog.org/?p=100648> by Rick Hasen<https://electionlawblog.org/?author=3>

Rolling Stone:<https://www.rollingstone.com/politics/politics-news/california-election-hacking-711202/>

 FBI agents in California and Washington, D.C., have investigated a series of cyberattacks over the past year that targeted a Democratic opponent of Rep. Dana Rohrabacher (R-CA). Rohrabacher is a 15-term incumbent<https://rohrabacher.house.gov/about/full-biography> who is widely seen<https://www.politico.com/story/2016/11/putin-congress-rohrabacher-trump-231775> as the most pro-Russia and pro-Putin member of Congress and is a staunch supporter of President Trump.

The hacking attempts and the FBI’s involvement are described in dozens of emails and forensic records obtained by Rolling Stone.

The target of these attacks, Dr. Hans Keirstead, a stem-cell scientist and the CEO<http://aivitabiomedical.com/about-us/our-leadership/hans-s-keirstead-ph-d/> of a biomedical research company, finished third in California’s nonpartisan “top-two” primary on June 5th, falling 125 votes short<http://elections.cdn.sos.ca.gov/sov/2018-primary/sov/82-congress.pdf> of advancing to the general election in one of the narrowest margins of any congressional primary this year. He has since endorsed<https://www.facebook.com/drhanskeirstead/posts/2034400476631592> Harley Rouda, the Democrat who finished in second place and will face Rohrabacher in the November election.

Cybersecurity experts say that it’s nearly impossible to identify who was behind the hacks without the help of law enforcement or high-priced private cybersecurity firms that collect their own threat data. These experts speculate that the hackers could have been one of many actors: a nation-state (such as Russia), organized crime, so-called e-crime or a hacktivist with a specific agenda. The FBI did not respond to requests for comment on its involvement or any findings.

Kyle Quinn-Quesada, who was Keirstead’s campaign manager, tells Rolling Stone that the campaign is now going public about the attacks for the sake of voter awareness. “It is clear from speaking with campaign professionals around the country that the sustained attacks the Keirstead for Congress campaign faced were not unique but have become the new normal for political campaigns in 2018,” Quinn-Quesada says. He added that the Keirstead campaign did not believe the cyberattacks had an effect on the primary election results.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>

--
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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