[EL] ELB News and Commentary 8/22/19

Thu Aug 22 08:35:47 PDT 2019

Coming in Time for Winter/Spring Classes: My New Book, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy<https://electionlawblog.org/?p=107024>
Posted on August 22, 2019 8:32 am<https://electionlawblog.org/?p=107024> by Rick Hasen<https://electionlawblog.org/?author=3>

As scooped in today’s Politico Playbook<https://t.co/0KxTUTQdeW>, I have a new book coming out, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy<https://www.amazon.com/Election-Meltdown-Distrust-American-Democracy/dp/0300248199/ref=sr_1_1?keywords=hasen+election+meltdown&qid=1565015345&s=digital-text&sr=1-1-catcorr>. For those instructors who have assigned The Voting War<https://www.amazon.com/Voting-Wars-Florida-Election-Meltdown/dp/0300182031/ref=tmm_hrd_swatch_0?_encoding=UTF8&qid=&sr=>s in their courses in the past (thank you!), this book is more up to date on current controversies, drawing from court cases and elections from 2016 to the present. The official publication date is February 4, but I understand the book will be available well before then for course ordering.
[cid:image001.jpg at 01D558C4.98164BD0]

Here’s what I told Politico<https://t.co/0KxTUTQdeW> about the book:
[cid:image002.jpg at 01D558C4.98164BD0]

And here’s the book description from Yale University Press<https://yalebooks.yale.edu/book/9780300248197/election-meltdown>:

As the 2020 presidential campaign begins to take shape, there is widespread distrust of the fairness and accuracy of American elections. In this timely and accessible book, Richard L. Hasen uses riveting stories illustrating four factors increasing the mistrust. Voter suppression has escalated as a Republican tool aimed to depress turnout of likely Democratic voters, fueling suspicion. Pockets of incompetence in election administration, often in large cities controlled by Democrats, have created an opening to claims of unfairness. Old-fashioned and new-fangled dirty tricks, including foreign and domestic misinformation campaigns via social media, threaten electoral integrity. Inflammatory rhetoric about “stolen” elections supercharges distrust among hardcore partisans.

Taking into account how each of these threats has manifested in recent years—most notably in the 2016 and 2018 elections—Hasen offers concrete steps that need to be taken to restore trust in American elections before the democratic process is completely undermined.

Link to preorder is here<https://www.amazon.com/Election-Meltdown-Distrust-American-Democracy/dp/0300248199/ref=sr_1_1?keywords=hasen+election+meltdown&qid=1565015345&s=digital-text&sr=1-1-catcorr>. Thanks for reading!
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

“Democrats, citing GOP-imposed voting restrictions, aim to flip secretary of state offices in five states”<https://electionlawblog.org/?p=107022>
Posted on August 22, 2019 8:19 am<https://electionlawblog.org/?p=107022> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/2019/08/22/democrats-citing-voter-suppression-aim-take-over-secretary-state-offices-five-states/>:

The Democratic Association of Secretaries of State is launching an initiative to try to wrest control of those offices from Republicans, who the group claims have used their power to make it harder for certain demographics to vote.

Buoyed by successes last year in Arizona, Colorado and Michigan, the group has set its sights on flipping five more states in 2020. In addition to recruiting and supporting Democratic candidates, the association is planning a public education campaign on the importance of secretaries of state, who oversee the election process in most states.

The offices of governor, U.S. senator and even attorney general tend to get more attention in statewide elections than that of secretary of state. But Alex Padilla, California’s secretary of state and the president of the association, said Republicans understand the influence of the office and have used it unfairly to their party’s advantage….

The Democratic Association of Secretaries of State hopes to unseat Republicans in Missouri, Montana, Oregon, Washington and West Virginia next year and will work to reelect Democratic secretaries in North Carolina and Vermont. Padilla said the group also will support Democrats in races this fall in Kentucky, Louisiana and Mississippi. Republicans currently have a 25-to-22 advantage among secretaries of state. The office does not exist in Alaska, Hawaii and Utah.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>

Nick Stehanopoulos to Harvard<https://electionlawblog.org/?p=107020>
Posted on August 22, 2019 8:14 am<https://electionlawblog.org/?p=107020> by Rick Hasen<https://electionlawblog.org/?author=3>

Big move<https://leiterlawschool.typepad.com/leiter/2019/08/lateral-hires-with-tenure-or-on-tenure-track-2019-20.html> in the election law biz reported by Brian Leiter. Congrats Nick!
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Posted in election law biz<https://electionlawblog.org/?cat=51>

“Russian interference, 2020”<https://electionlawblog.org/?p=107018>
Posted on August 22, 2019 8:05 am<https://electionlawblog.org/?p=107018> by Rick Hasen<https://electionlawblog.org/?author=3>

Axios<https://www.axios.com/russian-interference-2020-8991481f-bbdf-4f0a-9e49-5d59faa6a760.html?utm_source=newsletter&utm_medium=email&utm_campaign=newsletter_axiosam&stream=top> reports.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>

“Political Machine of the 21st Century; The Trump Organization As Platform Capitalism”<https://electionlawblog.org/?p=107016>
Posted on August 22, 2019 8:00 am<https://electionlawblog.org/?p=107016> by Rick Hasen<https://electionlawblog.org/?author=3>

Jeffrey Broxmeyer<http://www.publicseminar.org/2019/08/political-machine-of-the-21st-century/> for Public Seminar.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>

“Mail-In Absentee Ballot Anomalies in North Carolina’s 9th Congressional District”<https://electionlawblog.org/?p=107014>
Posted on August 22, 2019 7:58 am<https://electionlawblog.org/?p=107014> by Rick Hasen<https://electionlawblog.org/?author=3>

Michael Herron has written this article<https://www.liebertpub.com/doi/abs/10.1089/elj.2019.0544#utm_source=FastTrack&utm_medium=email&utm_campaign=elj> forthcoming in the Election Law Journal. Here is the abstract:

The aftermath of the 2018 midterm election in North Carolina was marred by allegations of absentee ballot fraud in the state’s 9th Congressional District, most notably in Bladen County, one of eight counties in North Carolina that intersects this district. We show with a difference-in-difference design that Bladen County’s election returns in 2018 are indeed highly anomalous: compared to congressional candidates in other North Carolina counties, the 9th District’s Republican candidate for the United States House of Representatives had in Bladen County a mail-in absentee vote share inconsistent with his level of Election Day support. Bladen County’s 2018 congressional election results are also anomalous when compared with North Carolina congressional elections of 2010, 2012, 2014, and 2016, and they are likewise anomalous when compared with recent congressional elections in Arkansas, Georgia, and Oklahoma, three states that tabulate election results in a way that facilitates comparisons with North Carolina. Beyond the 2018 midterm, congressional election returns in Bladen County exhibited anomalous mail-in absentee voting patterns in the 2018 Republican primary and in the 2016 general election. Finally, rates of requested and returned mail-in absentee ballots in the period surrounding the 2018 midterm were anomalous in both Bladen and neighboring Robeson counties. Our statistical results are consistent with investigative findings presented in February 2019 to the North Carolina State Board of Elections, which voted unanimously on February 21, 2019, to hold a new election in Congressional District 9.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, chicanery<https://electionlawblog.org/?cat=12>

Ballot Measure Push Begins to Get Albuquerque, NM to Use Campaign Finance Vouchers<https://electionlawblog.org/?p=107012>
Posted on August 22, 2019 7:44 am<https://electionlawblog.org/?p=107012> by Rick Hasen<https://electionlawblog.org/?author=3>

Details.<https://www.facebook.com/ABQDemocracyDollars/posts/384176345622471?notif_id=1566152431770100&notif_t=live_video_schedule_broadcaster>
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Posted in campaign finance<https://electionlawblog.org/?cat=10>

California Supreme Court Fast Tracks Litigation Over Whether New California Law Requiring Trump and Other Presidential Candidates to Produce Tax Returns to Run Violates State Constitution<https://electionlawblog.org/?p=107009>
Posted on August 21, 2019 3:48 pm<https://electionlawblog.org/?p=107009> by Rick Hasen<https://electionlawblog.org/?author=3>

David Ettinger<http://www.atthelectern.com/supreme-court-will-hear-state-constitutional-challenge-to-new-tax-return-disclosure-law/> with the details.

A finding that the provision violates the CA Constitution would moot the many federal lawsuits raising US Constitution challenges.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Derek Muller on Why the 10th Circuit’s Decision on Faithless Electors is Potentially Radical and Important (and Why the 10th Circuit en banc or SCOTUS Could Well Reverse on Procedural Grounds)<https://electionlawblog.org/?p=107007>
Posted on August 21, 2019 3:43 pm<https://electionlawblog.org/?p=107007> by Rick Hasen<https://electionlawblog.org/?author=3>

Always read<https://excessofdemocracy.com/blog/2019/8/analysis-10th-circuit-finds-colorado-wrongly-removed-faithless-presidential-elector-in-2016> Derek on the Electoral College:

In the latest of a string of faithless elector litigation<https://excessofdemocracy.com/blog/2017/12/status-of-2016-faithless-presidential-elector-litigation> arising from the 2016 presidential election, the 10th Circuit issued a decision finding that Colorado wrongly removed an elector pledged to support Clinton after he attempted to cast a vote for John Kasich. (Disclosure: I filed an amicus brief in support of neither party but calling for affirming the district court result below; the bulk of the brief focused on whether ballots must be secret, an issue the court did not reach.)

The question is a hard one, I admit, but the majority opinion suffers from a number of weaknesses. I’m not entirely certain of whether the case still presents a case or controversy, as the dissenting opinion points out; indeed, remarkably, the majority never cites the Eighth Circuit opinion on a removed faithless elector from Minnesota, which concluded the claim was moot<https://ecf.ca8.uscourts.gov/opndir/18/09/164551P.pdf>. My guess is that if the case is taken en banc or to the Supreme Court, it could well be tossed on procedural grounds….

Nevertheless, the breadth of this opinion—a suggestion that there’s a virtually unfettered choice, or at least that the state can’t fetter the choice—is what’s the most remarkable part of it. The contours of that choice are not defined, and the power of the state to act with electors who do a variety of things listed above may well be foreclosed by the court’s underdeveloped opinion.

But I want to close with one thought about the opinion’s impact. For decades, electors and states have had an uneasy kind of truce. Electors typically aren’t faithless, and states have wielded the threat of replacement even if they haven’t actually replaced them. This opinion, however, collapses that truce. Electors are now instructed that they can vote for whomever they want, and replacement is not an option. While that might have been true decades ago, too, before any replacement laws were on the books, one wonders whether electors will be more inclined to stray in 2020—particularly given fawning attention from disgruntled voters. True, these handful of electors didn’t change the outcome of the election, and in a closer election it’s less and less likely that electors are faithless, as their votes are more significant and their ability to protest carries greater weight. But I wonder about what this might yield in closer elections. Political parties have significant power to choose presidential electors—they may be scrutinizing their choices much more carefully in 2020.
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Posted in electoral college<https://electionlawblog.org/?cat=44>

“Republican Party of San Diego County launches ‘news’ website for political purposes”<https://electionlawblog.org/?p=107005>
Posted on August 21, 2019 3:39 pm<https://electionlawblog.org/?p=107005> by Rick Hasen<https://electionlawblog.org/?author=3>

San Diego Union-Tribune:<https://www.sandiegouniontribune.com/news/watchdog/story/2019-08-20/republican-party-of-san-diego-county-launches-news-website-for-political-purposes>

The San Diego County Republican Party recently launched a new political communications tool that looks like a local news website, albeit a politically right-leaning one.

You wouldn’t know that Sandiegonewsdesk.com was a Republican Party product unless you read the fine print at the bottom of the home page.
As of Tuesday morning, readers who scrolled down the site’s main page, past posts with titles such as, “Governor Newsom and Other Democrats are Worsening the Housing Crisis,” and “City Council Democrats Oppose Job-Creating Commercial Development,” would find a disclaimer at the very bottom of the page that read, “Paid for by the Republican Party of San Diego County.” Also listed are the identification numbers for the party’s state and local political committees and its associated tax-exempt organization.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Florida Joining ERIC<https://electionlawblog.org/?p=107003>
Posted on August 21, 2019 11:35 am<https://electionlawblog.org/?p=107003> by Rick Hasen<https://electionlawblog.org/?author=3>

Gary Fineout thread starts here<https://twitter.com/fineout/status/1164242777221357568>:
[cid:image004.png at 01D558C4.98164BD0]<https://twitter.com/fineout>
<https://twitter.com/fineout>
Gary Fineout<https://twitter.com/fineout>
✔@fineout<https://twitter.com/fineout>

<https://twitter.com/fineout/status/1164242777221357568>

BOOM at GovRonDeSantis<https://twitter.com/GovRonDeSantis> says Fla will join multi-state partnership that will allow the state to flag duplicate registrations in other states.

But it comes with a requirement that the state reach out to 4.2 million eligible and unregistered voters and tell them how to register
<https://twitter.com/intent/like?tweet_id=1164242777221357568>
87<https://twitter.com/intent/like?tweet_id=1164242777221357568>
11:28 AM - Aug 21, 2019<https://twitter.com/fineout/status/1164242777221357568>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
<https://twitter.com/fineout/status/1164242777221357568>
59 people are talking about this<https://twitter.com/fineout/status/1164242777221357568>

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

“Tenth Circuit Rules 2-1 that Presidential Elect[ors] May Not be Removed for Casting an Electoral College Vote for the “Wrong” Candidate”<https://electionlawblog.org/?p=107000>
Posted on August 21, 2019 10:18 am<https://electionlawblog.org/?p=107000> by Rick Hasen<https://electionlawblog.org/?author=3>

BAN:<http://ballot-access.org/2019/08/21/tenth-circuit-rules-2-1-that-presidential-elections-may-not-be-removed-for-casting-an-electoral-college-vote-for-the-wrong-candidate/>

On August 20, the Tenth Circuit ruled 2-1 that presidential electors have the constitutional right to vote for anyone who meets the constitutional qualifications to be president. Baca v Griswold, 18-1173. This is the first time any court has made such a ruling. The decision<https://equalcitizens.us/wp-content/uploads/2019/08/CA10-Elector-Case-Decision.pdf?eType=EmailBlastContent&eId=c2452774-4eb5-4b2e-a5a5-130464b3fbd3> is 117 pages and the dissent is seven pages. Here is<https://coloradosun.com/2019/08/21/faithless-electors-court-decision-colorado-10th-circuit/> a newspaper story about the decision.
The decision says, “Article II and the 12th Amendment provide presidential electors the right to cast a vote for president and vice president with discretion. And the state does not possess countervailing authority to remove an elector and to cancel his vote in response to the exercise of that constitutional right.” …

If the U.S. Supreme Court agrees with the Tenth Circuit, and finds that electors do have discretion, it is likely that a constitutional amendment to alter or replace the electoral college will be enacted. Another consequence would be that “sore loser” laws could not be applied to presidential candidates, because it would now be apparent that the true candidates in November are the candidates for presidential elector, not the presidential candidate. And the presidential electors wouldn’t be “sore losers”.
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Posted in electoral college<https://electionlawblog.org/?cat=44>

“Social media reconsiders its relationship with the truth”<https://electionlawblog.org/?p=106997>
Posted on August 21, 2019 8:02 am<https://electionlawblog.org/?p=106997> by Rick Hasen<https://electionlawblog.org/?author=3>

Axios:<https://www.axios.com/social-media-reconsiders-relationship-truth-f7b16fa6-3f53-42f6-af37-64449ec7b88d.html?utm_source=newsletter&utm_medium=email&utm_campaign=newsletter_axiosam&stream=top>

For years, Facebook and other social media companies have erred on the side of lenience in policing their sites — allowing most posts with false information to stay up, as long as they came from a genuine human and not a bot or a nefarious actor.
The latest: Now, the companies are considering a fundamental shift with profound social and political implications: deciding what is true and what is false.
The big picture: The new approach, if implemented, would not affect every lie or misleading post. It would be meant only to rein in manipulated media — everything from sophisticated, AI-enabled video or audio deepfakes<https://www.axios.com/the-impending-war-over-deepfakes-b3427757-2ed7-4fbc-9edb-45e461eb87ba.html> to super-basic video edits like a much-circulated, slowed-down clip of Nancy Pelosi<https://www.axios.com/altered-pelosi-video-social-media-2a1b751d-e785-4bbe-82de-753e71339f34.html> that surfaced in May.
Still, it would be a significant concession to critics who say the companies have a responsibility to do much more to keep harmful false information from spreading unfiltered.
It would also be an inflection point in the companies’ approach to free speech, which has thus far been that more is better and that the truth will bubble up.

Disclosure: The article notes: “In June, the Carnegie Endowment for International Peace gathered experts and representatives<https://carnegieendowment.org/2019/06/19/june-2019-convening-on-defining-inappropriate-synthetic-manipulated-media-ahead-of-u.s.-2020-election-pub-79661> from several big social media companies in San Francisco to focus on the threat to the 2020 election.” I was a participant at that meeting.

I opine on these issues in Deep Fakes, Bots, and Siloed Justices: American Election Law in a Post-Truth World<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3418427>.
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Posted in social media and social protests<https://electionlawblog.org/?cat=58>

“The Cybersecurity 202: L.A. County voting system pits cybersecurity vs. disability advocates”<https://electionlawblog.org/?p=106995>
Posted on August 21, 2019 7:58 am<https://electionlawblog.org/?p=106995> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2019/08/21/the-cybersecurity-202-l-a-county-voting-system-pits-cybersecurity-vs-disability-advocates/5d5c0b43602ff171a5d730a0/>:

A new voting system in Los Angeles County is about to super-charge a debate about the balance between the cybersecurity of election systems and accessibility for people with disabilities.

The L.A. system, which was custom-built over roughly a decade for $250 million, is a ballot-marking device (BMD), which means a machine marks the votes rather than the voter marking them directly. That makes it far more accessible for people with disabilities but also worries some cybersecurity hawks who say voters are unlikely to verify everything is entered correctly on those computer-marked ballots – leaving room for a hacker to change votes and maybe alter the outcome of a tight race, as I reported yesterday<https://www.washingtonpost.com/politics/2019/08/20/new-los-angeles-county-voting-system-highlights-trade-offs-between-security-accessibility/>.

They also argue that the danger of hacking simply grows greater when more technology is involved in any process, so the technology required to vote should be limited as much as possible.

Those hawks generally acknowledge BMDs are necessary for people with disabilities but say everyone else should use hand-marked paper ballots.
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Posted in voting technology<https://electionlawblog.org/?cat=40>

“Election Security Lessons from DEFCON 27”<https://electionlawblog.org/?p=106993>
Posted on August 21, 2019 7:51 am<https://electionlawblog.org/?p=106993> by Rick Hasen<https://electionlawblog.org/?author=3>

Ciara Torres-Spelliscy blogs.<https://www.brennancenter.org/blog/election-security-lessons-defcon-27>
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Posted in voting technology<https://electionlawblog.org/?cat=40>

--
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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