[EL] ELB News and Commentary 2/28/18

Wed Feb 28 07:56:12 PST 2018

“White House Has Given No Orders to Counter Russian Meddling, N.S.A. Chief Says”<http://electionlawblog.org/?p=97926>
Posted on February 28, 2018 7:53 am<http://electionlawblog.org/?p=97926> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/02/27/us/politics/michael-rogers-nsa-cyber-command-russia-election-meddling.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=1&pgtype=sectionfront>

Faced with unrelenting interference in its election systems, the United States has not forced Russia to pay enough of a price to persuade President Vladimir V. Putin to stop meddling, a senior American intelligence official said on Tuesday.

Adm. Michael S. Rogers, the departing head of the National Security Agency and the military’s Cyber Command, said that he was using the authorities he had to combat the Russian attacks. But under questioning during testimony before the Senate Armed Services Committee, he acknowledged that the White House had not asked his agencies — the main American spy and defense arms charged with conducting cyberoperations — to find ways to counter Moscow, or granted them new authorities to do so.

“President Putin has clearly come to the conclusion that there’s little price to pay and that therefore ‘I can continue this activity,’” said Admiral Rogers, who is set to retire in April. “Clearly what we have done hasn’t been enough.”
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D97926&title=%E2%80%9CWhite%20House%20Has%20Given%20No%20Orders%20to%20Counter%20Russian%20Meddling%2C%20N.S.A.%20Chief%20Says%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

The Strange Dispute Between NBC News and DHS and the Elections Community Over Election Hacking<http://electionlawblog.org/?p=97924>
Posted on February 28, 2018 7:44 am<http://electionlawblog.org/?p=97924> by Rick Hasen<http://electionlawblog.org/?author=3>

A few weeks ago, NBC News<http://electionlawblog.org/?p=97383> issued a story about election hacking which it presented as an exclusive. It drew pushback<http://electionlawblog.org/?p=97453> from DHS, and from many in the elections community, saying that the information was not new, and some of it was incorrect.

Yesterday NBC followed up with another story<https://www.nbcnews.com/politics/elections/u-s-intel-russia-compromised-seven-states-prior-2016-election-n850296>, this one giving much more specific details:

The U.S. intelligence community developed substantial evidence that state websites or voter registration systems in seven states were compromised by Russian-backed covert operatives prior to the 2016 election — but never told the states involved, according to multiple U.S. officials.

This one prompted an even stronger reaction from DHS, as the start of this thread shows:
<https://twitter.com/SpoxDHS/status/968660860897030144>

[https://pbs.twimg.com/profile_images/836679744263438337/WOwQjMcg_bigger.jpg]Tyler Q. Houlton<https://twitter.com/SpoxDHS>
✔@SpoxDHS<https://twitter.com/SpoxDHS>

. at NBCNews<https://twitter.com/NBCNews> reporting tonight on the 2016 elections is not accurate and is actively undermining efforts of @DHSgov<https://twitter.com/DHSgov> to work in close partnership with state and local governments to protect the nation’s election systems from foreign actors. https://twitter.com/NBCNightlyNews/status/968640755852955648 …<https://t.co/JfDtnDLKdh>
5:35 PM - Feb 27, 2018<https://twitter.com/SpoxDHS/status/968660860897030144>
·         <https://twitter.com/intent/like?tweet_id=968660860897030144>
338<https://twitter.com/intent/like?tweet_id=968660860897030144>
·         <https://twitter.com/SpoxDHS/status/968660860897030144>
463 people are talking about this<https://twitter.com/SpoxDHS/status/968660860897030144>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>

And noted election expert David Becker wrote:
<https://twitter.com/beckerdavidj/status/968669033305460736>

[https://pbs.twimg.com/profile_images/875472707667865600/9vRpqPxL_bigger.jpg]David Becker<https://twitter.com/beckerdavidj>
✔@beckerdavidj<https://twitter.com/beckerdavidj>

Another bizarre story from @NBCNews<https://twitter.com/NBCNews>. A mixture of old info, wrong info, and out-of-context info. Facts are clear - only one state system (IL) had any data accessed, and no voter data was changed or deleted, and no votes altered. We’ve known all this since at least June. https://twitter.com/spoxdhs/status/968660860897030144 …<https://t.co/UFBYLnXZWk>
6:07 PM - Feb 27, 2018<https://twitter.com/beckerdavidj/status/968669033305460736>
·         <https://twitter.com/intent/like?tweet_id=968669033305460736>
31<https://twitter.com/intent/like?tweet_id=968669033305460736>
·         <https://twitter.com/beckerdavidj/status/968669033305460736>
23 people are talking about this<https://twitter.com/beckerdavidj/status/968669033305460736>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>

It is hard to know what is going on here. My experience is that NBC News is one of the best in the business, and they take very seriously the need to get things right. But the reactions to this line of investigation is extraordinary, not just from DHS, but from other election officials and election observers.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D97924&title=The%20Strange%20Dispute%20Between%20NBC%20News%20and%20DHS%20and%20the%20Elections%20Community%20Over%20Election%20Hacking>
Posted in election administration<http://electionlawblog.org/?cat=18>

“Republican lawmakers return to court on Pennsylvania redistricting”<http://electionlawblog.org/?p=97922>
Posted on February 28, 2018 7:31 am<http://electionlawblog.org/?p=97922> by Rick Hasen<http://electionlawblog.org/?author=3>

Amy Howe:<http://www.scotusblog.com/2018/02/republican-lawmakers-return-court-pennsylvania-redistricting/>

Less than three weeks ago, the Supreme Court declined to get involved in a partisan-gerrymandering challenge to Pennsylvania’s federal congressional maps. Today that state’s Republican lawmakers returned to the Supreme Court<http://www.scotusblog.com/wp-content/uploads/2018/02/17A909.pdf>, asking the justices to block what they characterized as the Pennsylvania Supreme Court’s “intentional seizure of the redistricting process.”…The legislators’ request will go to Justice Samuel Alito, who handles emergency appeals from the geographic area that includes Pennsylvania. Alito can rule on the application himself or refer it to the full court. When the legislators came to the justices the first time, Alito denied the application himself<http://www.scotusblog.com/2018/02/alito-denies-stay-pennsylvania-redistricting-case/> – which, although there is no way to be sure, suggests that he saw little merit in the request. The legislators are clearly hoping for a better result this time.

[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D97922&title=%E2%80%9CRepublican%20lawmakers%20return%20to%20court%20on%20Pennsylvania%20redistricting%E2%80%9D>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“NAACP to Host Press Conference Denouncing Trump Federal Court Nominee Thomas Farr”<http://electionlawblog.org/?p=97920>
Posted on February 28, 2018 7:27 am<http://electionlawblog.org/?p=97920> by Rick Hasen<http://electionlawblog.org/?author=3>

Strong opposition (livestream<http://naacp.pr-optout.com/Tracking.aspx?Data=HHL%3d%40194%3f%26JDG%3c%3d2%3c264.LP%3f%40083%3a&RE=MC&RI=3953399&Preview=False&DistributionActionID=17453&Action=Follow+Link> of Wednesday press conference).
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D97920&title=%E2%80%9CNAACP%20to%20Host%20Press%20Conference%20Denouncing%20Trump%20Federal%20Court%20Nominee%20Thomas%20Farr%E2%80%9D>
Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

City of Fresno, Citing 5th Circuit Case But Not 9th Circuit Case to the Contrary, Decides to Ignore Campaign Finance Provision in Its Charter on Fundraising Timing<http://electionlawblog.org/?p=97918>
Posted on February 28, 2018 7:07 am<http://electionlawblog.org/?p=97918> by Rick Hasen<http://electionlawblog.org/?author=3>

Interesting story<http://gvwire.com/2018/02/27/get-the-checkbooks-ready-2020-fresno-political-fundraising-starts-now/> from Fresno.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D97918&title=City%20of%20Fresno%2C%20Citing%205th%20Circuit%20Case%20But%20Not%209th%20Circuit%20Case%20to%20the%20Contrary%2C%20Decides%20to%20Ignore%20Campaign%20Finance%20Provision%20in%20Its%20Charter%20on%20Fundraising%20Timing>
Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Free Speech vs. Freedom From Intimidation The Supreme Court is set to reconsider campaigning at the ballot box; Justice Scalia got it right the first time.”<http://electionlawblog.org/?p=97777>
Posted on February 27, 2018 1:22 pm<http://electionlawblog.org/?p=97777> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2018/02/the-supreme-court-is-reconsidering-campaigning-at-the-ballot-box-in-minnesota-voters-alliance-v-mansky.html> for Slate. It begins:

On Wednesday, the Supreme Court will hear arguments in Minnesota Voters Alliance v. Mansky<http://www.scotusblog.com/case-files/cases/minnesota-voters-alliance-v-mansky/?wpmp_switcher=desktop>, a case raising the question of whether Minnesota and other states can prevent people from wearing political apparel like a “Make America Great Again<http://www.slate.com/articles/news_and_politics/politics/2015/08/trump_s_campaign_hat_making_america_great_again_starting_with_this_hat.html>” cap or a “pussyhat<http://www.slate.com/blogs/xx_factor/2017/01/06/knitters_across_the_country_are_making_cat_ear_pussyhats_for_the_women_s.html>” to the polling place.

The question is a close one because it pits the First Amendment right to free speech against the right to vote free of intimidation and interference at the polling place. Considering a similar case<https://supreme.justia.com/cases/federal/us/504/191/case.html> in 1992, banning electioneering in areas around polling places Justice Antonin Scalia got it right: Polling places are and have traditionally been “nonpublic forums,” where the state can decide that the right to free speech needs to give way to the tranquility of the election booth. The point is even more urgent in our highly polarized times….

The difficult part of this case comes with the discretion given to polling-place officials. The ban applies not just to campaign messages but also to other political T-shirts. So one poll worker may decide that someone wearing a #MeToo button is too political, but another may not. This could allow for selectivity and arbitrariness at the polling place.

One potential solution<http://www.supremecourt.gov/DocketPDF/16/16-1435/27509/20180111122615333_MVA%20acb%20-%20final.pdf> to this problem suggested by campaign finance opponent Jim Bopp is for the Supreme Court to construe the statute to apply only to messages of express advocacy, like “Vote for Trump” or “Clinton 2016.” This is no solution, however. Everyone knows that a MAGA hat is Trump campaign gear and a pussyhat opposition to Trump, even if they do not contain express words of advocacy. Indeed, if the court construed the statute to apply only to express advocacy, it would become totally ineffective.

The solution here is for state officials to train election workers to recognize political statements and apply the ban evenhandedly. If there is any evidence of viewpoint discrimination—say against Tea Party messages at Democratic-leaning polling places—then it would be time to bring a new lawsuit challenging the law as applied on the ground.

There is a time for politicking and a time for voting. A ruling for Minnesota would ensure that states can recognize the tranquility of the ballot box, especially at a time where our national politics are heated to the point of inspiring violence<http://losangeles.cbslocal.com/2016/11/08/2-separate-fights-erupt-at-orange-county-polling-places/> at the voting booth. Justice Scalia is gone, but let’s hope that the Supreme Court’s remaining First Amendment stalwarts continue to recognize this sanctity.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D97777&title=%E2%80%9CFree%20Speech%20vs.%20Freedom%20From%20Intimidation%20The%20Supreme%20Court%20is%20set%20to%20reconsider%20campaigning%20at%20the%20ballot%20box%3B%20Justice%20Scalia%20got%20it%20right%20the%20first%20time.%E2%80%9D>
Posted in campaigns<http://electionlawblog.org/?cat=59>, Scalia<http://electionlawblog.org/?cat=123>, 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
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/20180228/595ed165/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/20180228/595ed165/attachment.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.jpg
Type: image/jpeg
Size: 4041 bytes
Desc: image002.jpg
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20180228/595ed165/attachment.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.jpg
Type: image/jpeg
Size: 3151 bytes
Desc: image003.jpg
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20180228/595ed165/attachment-0001.jpg>