[EL] ELB News and Commentary 11/22/18

Thu Nov 22 08:27:52 PST 2018

Happy Thanksgiving! and Thank You<https://electionlawblog.org/?p=102460>
Posted on November 22, 2018 8:26 am<https://electionlawblog.org/?p=102460> by Rick Hasen<https://electionlawblog.org/?author=3>

I’m thankful for election administrators, who work tirelessly behind the scenes at a very difficult and often underfunded job, and who usually only get attention when things go wrong.

I’m thankful for those in the election reform community, who are seeking to create a fairer  democracy, and especially to those who speak out against injustice and threats to our democracy and the rule of law.

I’m thankful for those in election security community, who are seeking to ensure we can have elections free of interference and errors.

I’m most thankful for ELB readers, who provide tips, give feedback, and make this service worthwhile to support even after 15 years.

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

Control of Alaska House Depends Upon Race Which is Currently TIED<https://electionlawblog.org/?p=102457>
Posted on November 21, 2018 6:21 pm<https://electionlawblog.org/?p=102457> by Rick Hasen<https://electionlawblog.org/?author=3>

Daily News-Minor:<http://www.newsminer.com/news/local_news/kathryn-dodge-bart-lebon-in-house-district-tie-following-absentee/article_a499c776-ede7-11e8-8de0-234fa848aefc.html>

In the nail-biter of a race for House District 1, Republican candidate Bart LeBon and Democratic candidate Kathryn Dodge are tied with 2,661 votes each following a review of all in-person ballots by the bi-partisan State Review Board and an initial count of absentee ballots.

Now, according to Jeremy Johnson, Fairbanks regional director for the Division of Elections, all absentee ballots will go through a hand audit process to make sure no votes were missed. That process will begin Friday. There are 522 absentee ballots to be hand-audited, Johnson said. …

The outcome of the race will determine the fate of this year’s House structure. If LeBon wins, the House will have a Republican majority, 21-19. If Dodge wins, the House will be split 20-20, a situation that will put the parties in a stalemate until a ruling caucus can be formed by some members shifting from one caucus to the other, according to current House Speaker Bryce Edgmon, D-Dillingham. This will mean the difference between Governor-elect Mike Dunleavy having a Republican Senate and House or a Democratic-led House that may oppose legislation handed down from the governors office.
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Posted in election administration<https://electionlawblog.org/?cat=18>, recounts<https://electionlawblog.org/?cat=50>

“Florida’s recount drama could sow chaos in 2020”<https://electionlawblog.org/?p=102455>
Posted on November 21, 2018 5:50 pm<https://electionlawblog.org/?p=102455> by Rick Hasen<https://electionlawblog.org/?author=3>

Sun Sentinel:<https://www.sun-sentinel.com/news/politics/fl-ne-recount-2020-story.html>

Florida’s 2018 recount is over, but the work to restore the public’s confidence has just started.

Political combatants didn’t hold their fire in Florida’s midterm elections, unleashing a barrage of unsupported allegations of voter fraud and conspiracy theories.

Vote-counting stumbles — from overheated machines to misplaced ballots — only added more distrust as election workers scrambled to complete recounts<https://www.sun-sentinel.com/news/florida/fl-ne-florida-manual-recount-sunday-20181118-story.html> in three statewide races.

The ensuing chaos could be only a preview of what’s to come in two years when President Donald Trump<https://www.sun-sentinel.com/topic/politics-government/donald-trump-PEBSL000163-topic.html> faces re-election. Trump has touted false claims that millions of illegal votes were cast in the 2016 presidential election.
The president used Florida’s midterm elections to inject even more doubt, going as far to suggest with no evidence that people were using disguises to vote multiple times in elections.

“It doesn’t help instill confidence when you have some supervisor of election offices that have questionable results,” said Aubrey Jewett, a political scientist at the University of Central Florida. “It doesn’t help the case either when you have elected officials making accusations without any evidence.”

Rick Hasen, an expert on election law at the University of California, Irvine, wrote that Trump could be building a case for staying in power if he loses a close election.

“Perhaps most terrifyingly of all, the 2018 Florida elections have demonstrated the real possibility that President Donald Trump might attempt to ignore an unfavorable 2020 election outcome if the result is a slim loss by the president, a possibility that should give us all chills,” he wrote in a column for Slate<https://slate.com/news-and-politics/2018/11/florida-election-chaos-2020-trump-nightmare-scenario.html>.
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Posted in election administration<https://electionlawblog.org/?cat=18>, The Voting Wars<https://electionlawblog.org/?cat=60>

Coalition of Minor Parties, Idaho Republican Party File Amicus Brief Supporting Cert. Grant in Utah Political Party Rights Case; Senators Lee and Cruz, Reps. Labrador and Bishop File Another<https://electionlawblog.org/?p=102450>
Posted on November 21, 2018 5:41 pm<https://electionlawblog.org/?p=102450> by Rick Hasen<https://electionlawblog.org/?author=3>

Here<https://www.supremecourt.gov/DocketPDF/18/18-450/71905/20181113183410429_Amicus%20Brief%20for%20Political%20Parties%20-%20Final%20Draft.pdf> is the minor party brief.

Here<https://www.supremecourt.gov/DocketPDF/18/18-450/72032/20181114145615336_18-450%20Amici%20Curiae%20Brief.pdf> is the Lee/Cruz brief.

My earlier coverage is here,<https://electionlawblog.org/?p=101447> where I suggest this would be a very interesting case for the Court to hear.
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Posted in political parties<https://electionlawblog.org/?cat=25>, primaries<https://electionlawblog.org/?cat=32>, Supreme Court<https://electionlawblog.org/?cat=29>

Katz, King and Rosenblatt with Important New Technical Paper on Measuring Partisan Fairness in Redistricting<https://electionlawblog.org/?p=102446>
Posted on November 21, 2018 5:33 pm<https://electionlawblog.org/?p=102446> by Rick Hasen<https://electionlawblog.org/?author=3>

I think this new draft<https://gking.harvard.edu/symmetry> is going to be important to the field.

Theoretical Foundations and Empirical Evaluations of Partisan Fairness in District-Based Democracies

Citation:

Jonathan N. Katz, Gary King, and Elizabeth Rosenblatt. Working Paper. “Theoretical Foundations and Empirical Evaluations of Partisan Fairness in District-Based Democracies<https://gking.harvard.edu/symmetry>”.

Abstract:

We clarify the theoretical foundations of partisan fairness standards for district-based democratic electoral systems, including essential assumptions and definitions that have not been formalized or in some cases even discussed. We pare assumptions down to their minimal essential components and add extensive empirical evidence for those with observable implications. Throughout, we follow a fundamental principle of statistics too often ignored — defining the quantity of interest separately so its measures are vulnerable to being proven wrong, evaluated, and improved. This enables us to prove which approaches — claimed in the literature to be estimators of partisan symmetry, the most widely accepted standard — are statistically appropriate and which are biased, limited, or not measures of symmetry at all. Because real world redistricting involves complicated politics with numerous participants and conflicting goals, measures biased for partisan fairness sometimes still provide useful descriptions of other aspects of electoral systems.
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Posted in redistricting<https://electionlawblog.org/?cat=6>

“Georgia Set To Remain A Battleground For Voting Rights Ahead Of 2020”<https://electionlawblog.org/?p=102444>
Posted on November 21, 2018 2:46 pm<https://electionlawblog.org/?p=102444> by Rick Hasen<https://electionlawblog.org/?author=3>

NPR reports<https://www.npr.org/2018/11/21/669106803/georgia-set-to-remain-a-battleground-for-voting-rights-ahead-of-2020?utm_source=twitter.com&utm_medium=social&utm_campaign=politics&utm_term=nprnews&utm_content=2050>.
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Posted in election administration<https://electionlawblog.org/?cat=18>, The Voting Wars<https://electionlawblog.org/?cat=60>

“No Investigators Have Talked To Georgia Democrats About Brian Kemp’s Claim They Tried To Hack Him”<https://electionlawblog.org/?p=102442>
Posted on November 21, 2018 12:13 pm<https://electionlawblog.org/?p=102442> by Rick Hasen<https://electionlawblog.org/?author=3>

BuzzFeed:<https://www.buzzfeednews.com/article/kevincollier/goergia-democrats-hacking-probe>

Right before the election, Brian Kemp, at the time Georgia’s secretary of state and the Republican candidate for governor, announced an investigation into state Democrats, claiming they’d hacked him. He said he’d alerted federal authorities.

Now, more than two weeks later, Kemp is governor-elect, and the Democrats he accused say they’ve yet to hear a word from any would-be investigators.

“We have not heard from the various acronym agencies that Brian Kemp decided to include in his press release, and we do not expect to hear from them,” Seth Bringman, spokesperson for the Georgia Democratic Party, told BuzzFeed News in an email.

On Nov. 4, two days before Election Day, Kemp’s office issued a press release claiming, without providing evidence, that Georgia Democrats had engaged in a “failed hacking attempt” of the secretary of state’s voter registration system.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, voting technology<https://electionlawblog.org/?cat=40>

“A historian on our broken election system: ‘it’s run by people with stake in the outcome'”<https://electionlawblog.org/?p=102440>
Posted on November 21, 2018 11:41 am<https://electionlawblog.org/?p=102440> by Rick Hasen<https://electionlawblog.org/?author=3>

Vox interviews Charles Zelden.<https://www.vox.com/conversations/2018/11/21/18105448/florida-georgia-recount-voting-rights-elections-2018>
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Posted in Bush v. Gore reflections<https://electionlawblog.org/?cat=5>, election administration<https://electionlawblog.org/?cat=18>

“The Cybersecurity 202: At least six states still might not have paper ballot backups in 2020”<https://electionlawblog.org/?p=102438>
Posted on November 21, 2018 7:32 am<https://electionlawblog.org/?p=102438> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2018/11/21/the-cybersecurity-202-at-least-six-states-still-might-not-have-paper-ballot-backups-in-2020/5bf4b7aa1b326b60d127ffe5/?utm_term=.73ebc6cac0bd>
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Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>

“A Cigarette for a Fake Signature? Election Fraud Charged on Los Angeles’ Skid Row”<https://electionlawblog.org/?p=102436>
Posted on November 21, 2018 7:31 am<https://electionlawblog.org/?p=102436> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/11/20/us/election-fraud-los-angeles-skid-row.html>

They are a familiar sight at farmers’ markets and public squares across California every election season: workers gathering signatures needed to place voter initiatives on the ballot.

Nine people have been charged with felony election fraud after they went to a different part of town to collect signatures: Skid Row in Downtown Los Angeles.

The Los Angeles district attorney announced on Tuesday that the nine had been charged with paying homeless people off — with one dollar bills and stray cigarettes — in exchange for signing fake names on petitions for the initiatives or on voter registration forms. (People who sign petitions are required to be registered voters.)
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Posted in chicanery<https://electionlawblog.org/?cat=12>

Campaign Legal Center: Four Priorities for H.R. 1<https://electionlawblog.org/?p=102434>
Posted on November 21, 2018 7:26 am<https://electionlawblog.org/?p=102434> by Rick Hasen<https://electionlawblog.org/?author=3>

In collaboration with Take Care<http://takecareblog.com/>, Election Law Blog is pleased to present a series of posts offering thoughts on legislation to reform the U.S. electoral process.

By Campaign Legal Center<https://campaignlegal.org/>

The 2018 election provides us with two main insights on American democracy. First, our democratic system of government is falling down on the job. In this past election cycle, dark money flooded our digital spaces, voters faced a series of unnecessary and discriminatory hurdles to voting, and partisan gerrymanders held together despite wave elections for the other party.

But the second insight is equally important and far more hopeful: Americans are hungry for a democracy that is more transparent, accessible, and accountable. Where democracy was on the ballot—whether it be felony re-enfranchisement in Florida, redistricting reform in Missouri, or public financing in Denver—voters favored democracy.

There are indications that the next Congress will seriously consider legislation designed to improve our democracy. In anticipation of that legislation, we asked our Campaign Legal Center experts to identify their highest-priority legislative items for democracy reform in the areas of campaign finance, voting rights, redistricting, and ethics. While there are many possible avenues by which Congress could meaningfully improve the American democratic process (as other contributors to this series have noted), we believe the proposals below should be at the top of the list because they are all workable, constitutionally sound, and would go miles toward putting our democracy back on track.

1. Bring Transparency to the Digital Age: Require Disclosure for Online Ads (Better Yet, Upend the Campaign Finance Ecosystem with Public Funding)

Political advertising is increasingly moving online. In the 2018 elections, digital political spending hit $1.8 billion, or 20 percent of total ad spending—an astonishing 2,400 percent increase as compared to the 2014 midterms, according to <https://www.yahoo.com/news/despite-restrictions-digital-spending-hits-record-us-midterms-020115626.html> Borrell Associates.

But the law has failed to keep up. The last major reforms to campaign finance law came in 2002, in the relative infancy of the internet. As a result, current law allows many digital political ads to escape the transparency requirements that apply to identical ads run on TV or radio. For example, under current law, “electioneering communications”—ads that name a candidate and are broadcast to the candidates’ voters shortly before the election—are subject to reporting and disclosure requirements if more than $10,000 is spent. But the definition of “electioneering communications” includes only television and radio ads, not digital.

Thus, at a minimum, any reform legislation should make clear that the definition of “electioneering communications” includes paid digital ads. This would ensure that paid digital election ads are subject to the same reporting requirements and include the same on-ad disclaimers as campaign ads run on any other medium.

In the absence of congressional action, Facebook and Twitter have begun to institute certain informational requirements. But enforcement of these voluntary measures has been haphazard at best and the tech companies have made clear that they are ill-equipped to self-regulate in this area. The nation cannot outsource its democratic transparency to private entities whose ultimate responsibility is to their shareholders rather than to American voters. Congress should update the campaign finance statute to ensure disclosure of paid digital electioneering, thereby vindicating voters’ right to know who is spending money to influence our elections.

Digital ad reforms will help limit opportunities for foreign interference and improve transparency as political spending moves online—but a public funding program can entirely reorient our elections, by reducing opportunities for corruption, encouraging new and diverse candidates to seek public office, and broadening political participation. As CLC recently described<https://campaignlegal.org/sites/default/files/2018-10/2018-Building-Small-Dollar-Democracy_FINAL.pdf>, a well-designed program can create an incentive for candidates to fundraise and connect with the people they seek to represent—including people of modest means. And this translates to a donor base that looks more like the fabric of the community, rather than a handful of wealthy elites.

Ok, we cheated; we chose two priorities, not one. We should really do both.

2. Ditch the Bureaucracy: Make Voter Registration Easy

Every year, eligible voters either stay home on Election Day or are turned away at the polls because they are not properly registered to vote. Indeed, unregistered eligible voters drive our overall low turnout rates. In 2016, only 60.1%<http://www.electproject.org/2016g> of the voting eligible population cast ballots but 86.8%<http://www.pewresearch.org/fact-tank/2018/05/21/u-s-voter-turnout-trails-most-developed-countries/> of registered voters did. This is not only a result of self-selection of motivated voters. Voter registration issues are routinely<https://866ourvote.org/publications-reports/> one of the most common problems reported to the non-partisan Election Protection hotline. Studies<http://vote.caltech.edu/reports/6>estimate that millions of voters are “lost” nationwide due to registrar errors discovered on Election Day. And these problems are likely to increase in light of the Supreme Court’s recent gutting<https://www.supremecourt.gov/opinions/17pdf/16-980_f2q3.pdf> of a key statutory protection against registration purges on the basis of non-voting and multiplying tactics by cynical politicians aimed at making voter registration more difficult.

Luckily, these problems are fixable at the federal level. The Constitution’s Elections Clause gives Congress broad power to regulate the “time, places and manner” of federal elections, including voter registration. In 1993, Congress passed sweeping voter registration reforms in the National Voter Registration Act (NVRA) aimed at “reducing barriers, particularly government-imposed barriers, to applying for registration wherever possible.” But given significant technological advancements and improvements to registration best practices in the past twenty-five years, the NVRA needs a remake.

Congress should enact a package of common-sense modern registration reforms proven to improve eligible voter participation: (1) automatic<https://www.demos.org/publication/oregon-automatic-voter-registration> and portable voter registration through the DMV or other social services agencies; (2) Election Day registration<http://www.ncsl.org/research/elections-and-campaigns/same-day-registration.aspx> as a fail-safe for eligible unregistered voters; and (3) pre-registration<https://onlinelibrary.wiley.com/doi/pdf/10.1111/ajps.12177> for 16 and 17-year-olds to foster civic engagement from early adulthood. These reforms will lower significant barriers to equitable voter participation in a tested and constitutionally sound manner. And although the Elections Clause only applies to federal elections, once states have them in place they will have little incentive not to apply them across the board.

3. Stop Letting the Foxes Guard the Hen Houses: Create An Independent Congressional Redistricting Commission

When it comes to ensuring that the post-2020 round of redistricting is fair, there are two very simple steps the U.S. House can take with respect to congressional redistricting reform. First it can take the power to draw congressional district lines out of the hands of self-interested state legislators, and give that power to an independent commission. A single national commission, comprised of non-partisan experts (demographers, political scientists, sociologists) could draw congressional lines for every state, post them publicly online, and conduct public hearings around the country to get feedback on the proposed boundaries. Every boundary decision could be justified with a written explanation of the values that those boundaries are trying to promote. The process would be transparent, would involve the public in decision-making, and most importantly would mean that voters can choose their representatives, not the other way around.

The second step would be for the Congress to adopt criteria by which the independent commission draws its lines. The criteria should include partisan fairness, the protection of the voting rights of communities of color, respect for political subdivisions, and equal population using the total population from the 2020 census. These criteria would enshrine values that we know are held by a majority of Americans (Republicans, Democrats, and Independents), and allow the commission to make sure that every voice in America counts when it comes to elections.

4. Provide Accountability with Bite: Create An Ethics Enforcement Agency for the Executive Branch

To strengthen the structural foundation of the ethics program, Congress should establish an Inspector General with regular jurisdiction over small agencies like the White House Office—which is headed by Chief of Staff John Kelly and houses some of the President’s closest advisors including Kellyanne Conway, Ivanka Trump, and Jared Kushner—and limited special jurisdiction to conduct ethics investigations throughout the executive branch.

Currently, there is no agency in the executive branch charged exclusively with ethics investigations and enforcement. The Office of Government Ethics (OGE) acts primarily in an advisory role: it provides guidance, seeks voluntary compliance, and coordinates with agency officials responsible for directing the daily activities of an agency’s ethics program. It is not an enforcement agency. Identification of conflicts of interest and prevention of other ethics violations depend on a system of cooperation, disclosure, and ready collaboration with OGE. While this system has worked reasonably well in the past, the glut of executive branch ethical issues we have seen in the last two years demonstrate the weaknesses of this system. An additional entity in the executive branch with investigative authority over ethics-related matters could fill the enforcement gap and provide an additional deterrent for top employees who are considering skirting ethics rules.

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

--
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>
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http://electionlawblog.org<http://electionlawblog.org/>
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