[EL] ELB News and Commentary 11/9/18

Thu Nov 8 19:38:13 PST 2018

Everyone Needs to Read Ned Foley’s “Big Blue Shift” on Why Democrats Do Better as Later Ballots Get Counted<https://electionlawblog.org/?p=102081>
Posted on November 8, 2018 7:33 pm<https://electionlawblog.org/?p=102081> by Rick Hasen<https://electionlawblog.org/?author=3>

He explains why it happens<http://files.www.lawandpolitics.org/content/vol-xxvii-no-4/Foley_Color_116.pdf> and what it means for the perceived fairness of election administration.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Another Troubling Development for the Rule of Law and Election Administration: Rick Scott Requests Law Enforcement to Investigate Broward County Vote Counting, As He’s Locked in a Close Race for Senate, and President Piles On<https://electionlawblog.org/?p=102079>
Posted on November 8, 2018 7:30 pm<https://electionlawblog.org/?p=102079> by Rick Hasen<https://electionlawblog.org/?author=3>

Banana republic stuff spreads.

Marc Caputo and Matt Dixon for Politico<https://www.politico.com/states/florida/story/2018/11/08/scott-orders-investigation-of-and-sues-broward-county-as-his-margins-shrink-against-nelson-690074>:

Gov. Rick Scott announced Thursday night that he was calling for a state investigation into Broward County’s handling of tens of thousands of ballots that have led to statewide recounts in three races, including the U.S. Senate contest in which the Republican’s lead has slowly decreased since Election Day.

At the same time Scott called for a Florida Department of Law Enforcement investigation, Scott’s campaign filed a public-records lawsuit<https://www.politico.com/f/?id=00000166-f61d-de9f-a367-fe7d6d050001> against Broward County Election Supervisor Brenda Snipes, accusing her of failing to provide details about the ballots tabulated after Election Day.

As a candidate he has every right to file a lawsuit, but calling for a law enforcement investigation while he is governor is stepping over the line when he has a personal stake in the outcome here.

And President Trump piles on<https://twitter.com/realDonaldTrump/status/1060723241193484288>:
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Donald J. Trump<https://twitter.com/realDonaldTrump>
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<https://twitter.com/realDonaldTrump/status/1060723241193484288>

Law Enforcement is looking into another big corruption scandal having to do with Election Fraud in #Broward<https://twitter.com/hashtag/Broward?src=hash> and Palm Beach. Florida voted for Rick Scott!
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“Democratic legitimacy is on the line in Georgia”<https://electionlawblog.org/?p=102077>
Posted on November 8, 2018 7:22 pm<https://electionlawblog.org/?p=102077> by Rick Hasen<https://electionlawblog.org/?author=3>

The sober Ned Foley with this important WaPo oped<https://www.washingtonpost.com/opinions/democratic-legitimacy-is-on-the-line-in-georgia/2018/11/08/957fee80-e394-11e8-b759-3d88a5ce9e19_story.html?utm_term=.2f51077c5510>:

The Georgia race is close enough that the democratic legitimacy of the outcome depends on how ballots that have yet to be counted are handled. Stacey Abrams, the Democrat, trails Brian Kemp, the Republican. But if the gap sufficiently narrows<https://www.washingtonpost.com/politics/brian-kemps-lead-over-stacey-abrams-narrows-amid-voting-complaints-in-georgia-governors-race/2018/11/07/39cf25f2-e2b7-11e8-b759-3d88a5ce9e19_story.html?utm_term=.1387e52b29ed> as additional ballots are counted, state law would require a runoff.

One might hope that the remainder of the counting process could be straightforward. But Kemp has had every incentive to keep additional ballots from being counted by asserting that some impropriety disqualifies them. And Kemp, who finally resigned<https://www.washingtonpost.com/politics/gop-rep-karen-handel-concedes-to-anti-gun-violence-advocate-lucy-mcbath-in-closely-watched-georgia-race/2018/11/08/7d82eb7e-e359-11e8-b759-3d88a5ce9e19_story.html?utm_term=.655c18a56291> Thursday as Georgia’s secretary of state, has been supervising the process of casting and counting the ballots throughout the election.

This is no small matter. With all the concerns of possible cyberattacks on the nation’s voting infrastructure, there was serious anxiety that results this year might not be an accurate reflection of the choices voters made. Moreover, with all the fears that eligible voters might be prevented from casting ballots by various forms of voter suppression, there was a genuine worry that the results might not accurately reflect the will of the electorate for the simple reason that some eligible voters who attempted to participate were unable. (In other words, the output would be inaccurate because some of the inputs were wrongfully missing.)
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Russia Seen Adopting New Tactics in U.S. Election Interference Efforts”<https://electionlawblog.org/?p=102075>
Posted on November 8, 2018 1:28 pm<https://electionlawblog.org/?p=102075> by Rick Hasen<https://electionlawblog.org/?author=3>

Reuters:<https://www.nytimes.com/reuters/2018/11/06/world/europe/06reuters-usa-election-russia.html?utm_campaign=The%20Interface&utm_medium=email&utm_source=Revue%20newsletter>

If the goals of spreading divisive content have remained the same, the methods have evolved in multiple ways, researchers say. For one, there has been less reliance on pure fiction. People have been sensitized to look for completely false stories, and Facebook has been using outside fact-checkers to at least slow their spread on its pages.

“We’ve done a lot research on fake news and people are getting better at figuring out what it is, so it’s become less effective as a tactic,” said Priscilla Moriuchi, a former National Security Agency official who is now a threat analyst at the cybersecurity firm Recorded Future threat manager.

Instead, Russian accounts have been amplifying stories and internet “memes” that initially came from the U.S. far left or far right. Such postings seem more authentic, are harder to identify as foreign, and are easier to produce than made-up stories.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>

Republicans File Suit in Arizona Seeking to Block Election Officials from Checking with Voters Whose Ballots Were Rejected on Signature Match Grounds<https://electionlawblog.org/?p=102073>
Posted on November 8, 2018 12:19 pm<https://electionlawblog.org/?p=102073> by Rick Hasen<https://electionlawblog.org/?author=3>

Read the complaint<https://arizonaspolitics.blogspot.com/2018/11/read-breaking-arizona-republicans-legal.html>.

This occurs as ballots continued to be counted in the very close McSally-Sinema Senate race.
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Posted in election administration<https://electionlawblog.org/?cat=18>

Recounts Likely in BOTH Florida Senate and Florida Governor’s Races<https://electionlawblog.org/?p=102070>
Posted on November 8, 2018 12:15 pm<https://electionlawblog.org/?p=102070> by Rick Hasen<https://electionlawblog.org/?author=3>

and there are concerns about the Broward ballots, and whether poor ballot design, ballot counting machine error or something else might explain the undervote for Senate.  Stay buckled in.
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#BREAKING<https://twitter.com/hashtag/BREAKING?src=hash>: Florida is now likely to have TWO recounts. DeSantis and Gillum are now just 0.47% apart, which would require a machine recount under Florida law, while there is only a 0.22% difference between Scott and Nelson. https://wsvn.com/news/local/florida-now-likely-to-face-two-ballot-recounts-as-governor-senate-races-tighten/ …<https://t.co/mCO8pe25wU>
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Florida now likely to face two ballot recounts as governor, senate races tighten<https://t.co/mCO8pe25wU>

TALLAHASSEE, Fla. (AP) — Democrat Andrew Gillum’s campaign now says it’s prepared for a possible recount in the Florida governor race that he conceded to...<https://t.co/mCO8pe25wU>
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Posted in recounts<https://electionlawblog.org/?cat=50>

Florida! Poor Ballot Design in Broward County May Have Led Voters to Skip Senate Race<https://electionlawblog.org/?p=102067>
Posted on November 8, 2018 8:05 am<https://electionlawblog.org/?p=102067> by Rick Hasen<https://electionlawblog.org/?author=3>
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Dear god: 18 years after the butterfly ballot in Broward costs Dems the WH, Broward uses a ballot that leads 24.000 people to not vote in the Senate election? WTF Fla Dems?https://www.sun-sentinel.com/news/politics/fl-ne-election-broward-turnout-difference-20181107-story.html …<https://t.co/jwoK1Ijneg>
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Thousands in Broward voted for governor, but not Senate<https://t.co/jwoK1Ijneg>

Around 668,800 people voted for governor in Broward Tuesday while just under 645,000 voters cast ballots for U.S. Senate, according to preliminary results released Wednesday.<https://t.co/jwoK1Ijneg>
sun-sentinel.com<https://t.co/jwoK1Ijneg>

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Sun Sentinel:<https://www.sun-sentinel.com/news/politics/fl-ne-election-broward-turnout-thursday-20181108-story.html>

The difference was nearly even between the Republican and Democratic candidates.

Gillum received more than 10,200 votes than Nelson, while DeSantis also received more than 10,400 votes than Scott.

Some voters said that they don’t remember seeing the Senate race on their ballots or that they almost missed it.

For the midterms, Broward’s discrepancy among the number of votes wasn’t just in the Senate and governor races.

More people in Broward voted for the state’s commissioner of agriculture, chief financial officer and attorney general positions than they did for the Senate, according to the preliminary county results.

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

“The ‘Blue Wave’ Wasn’t Enough to Overcome Republican Gerrymanders”<https://electionlawblog.org/?p=102065>
Posted on November 8, 2018 8:00 am<https://electionlawblog.org/?p=102065> by Rick Hasen<https://electionlawblog.org/?author=3>

William Adler and Stuart Thompson NYT oped<https://www.nytimes.com/interactive/2018/11/07/opinion/midterm-elections-2018-republican-gerrymandering.html>, with some very informative graphics.
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Posted in redistricting<https://electionlawblog.org/?cat=6>

Breaking: Brian Kemp Resigns as Georgia Secretary of State, Effective Tonight, As Abrams Continues to Fight for Votes in Governor’s Race<https://electionlawblog.org/?p=102063>
Posted on November 8, 2018 7:36 am<https://electionlawblog.org/?p=102063> by Rick Hasen<https://electionlawblog.org/?author=3>

Axios reports.<https://www.axios.com/brian-kemp-resigns-georgia-secretary-of-state-903eb3fe-72a8-4888-beac-c6c48c4783a1.html>

Kemp should have recused himself from any issues connected to this election, given his obvious conflict of interest.

This comes after numerous complaints about how he conducted this election and election administration in Georgia generally.

Protect Democracy, which sued Kemp to get him to step aside, claimed victory<https://twitter.com/protctdemocracy/status/1060550288472530945> (though it is not clear the lawsuit was the direct cause of Kemp’s resignation.)

I wrote over the weekend at Slate<https://slate.com/news-and-politics/2018/11/georgia-governor-candidate-brian-kemp-attempts-last-minute-banana-republic-style-voter-manipulation.html> about how he committed the most brazen act of partisanship in election administration in recent memory.

Kemp has declared victory<https://www.cnn.com/2018/11/07/politics/stacey-abrams-brian-kemp-georgia-governors-race/index.html> in the governor’s race but Abrams, citing lots of problems with how the election was conducted and votes still outstanding, has not conceded.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>

--
Rick Hasen
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UC Irvine School of Law
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