[EL] ELB News and Commentary 2/21/19

[Rick Hasen]

In #NC09 Election Hearing, Mark Harris’s Lawyers in Potential Trouble for Not Turning over Relevant (and Damaging) Emails and Other Subpoenaed Material<https://electionlawblog.org/?p=103689>
Posted on February 21, 2019 7:41 am<https://electionlawblog.org/?p=103689> by Rick Hasen<https://electionlawblog.org/?author=3>
[https://pbs.twimg.com/profile_images/1014504444476739585/UN7_0-Jq_bigger.jpg]<https://twitter.com/JoeBrunoWSOC9>
<https://twitter.com/JoeBrunoWSOC9>
Joe Bruno<https://twitter.com/JoeBrunoWSOC9>
✔@JoeBrunoWSOC9<https://twitter.com/JoeBrunoWSOC9>

 · 1h<https://twitter.com/JoeBrunoWSOC9/status/1098588158021779456>
<https://twitter.com/JoeBrunoWSOC9/status/1098588158021779456>

Replying to @JoeBrunoWSOC9<https://twitter.com/_/status/1098587996125888514>

NCSBE appears to be frustrated that these documents were produced so late #NC09<https://twitter.com/hashtag/NC09?src=hash>
[https://pbs.twimg.com/profile_images/1014504444476739585/UN7_0-Jq_bigger.jpg]<https://twitter.com/JoeBrunoWSOC9>
<https://twitter.com/JoeBrunoWSOC9>
Joe Bruno<https://twitter.com/JoeBrunoWSOC9>
✔@JoeBrunoWSOC9<https://twitter.com/JoeBrunoWSOC9>


NCSBE attorney @josh_lawson<https://twitter.com/josh_lawson> says the documents were specifically mentioned in the subpoena and within its scope. Lawson- "we have been aware of those documents that have never been produced for quite some time." #NC09<https://twitter.com/hashtag/NC09?src=hash>
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56<https://twitter.com/intent/like?tweet_id=1098589043133239299>
6:23 AM - Feb 21, 2019<https://twitter.com/JoeBrunoWSOC9/status/1098589043133239299>
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See Joe Bruno's other Tweets<https://twitter.com/JoeBrunoWSOC9>

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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>


“G.O.P. Ready to ‘Nuke’ Senate Democrats Again Over Nominee Delays”<https://electionlawblog.org/?p=103687>
Posted on February 21, 2019 7:35 am<https://electionlawblog.org/?p=103687> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2019/02/20/us/politics/senate-nuclear-option-trump.html>:

Senate Republicans are preparing to detonate a mini-nuke.
Angry over Democratic delaying tactics that have slowed the conveyor belt of Trump administration nominees plodding toward confirmation, the Senate majority is preparing to strong-arm a rules change that would reduce required debate time on judicial and executive branch appointees to two hours from as many as 30.

It would be the third time in six years that one party has used a procedural tactic, called the “nuclear option,” to rewrite the Senate rule book rather than do it the old-fashioned way by assembling a bipartisan consensus. The change might not be as drastic as the 2013 Democratic decision to abolish the 60-vote filibuster on most nominees or the 2017 decision by Republicans to extend that 51-vote confirmation threshold to the Supreme Court.

But Democrats say the consequences will still be significant, accelerating the nominating process for 80 percent of administration appointees, limiting the vetting of nominees and keeping the confirmation conveyor belt humming.
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Posted in legislation and legislatures<https://electionlawblog.org/?cat=27>, political parties<https://electionlawblog.org/?cat=25>, political polarization<https://electionlawblog.org/?cat=68>


“Candidate’s son warned father of N.C. political operative’s alleged tactics”<https://electionlawblog.org/?p=103685>
Posted on February 21, 2019 7:32 am<https://electionlawblog.org/?p=103685> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/candidates-son-warned-father-of-nc-political-operatives-tactics/2019/02/20/a1fbfecc-3521-11e9-a400-e481bf264fdc_story.html?utm_term=.9cd0f51058f6>

The son of Republican congressional candidate Mark Harris testified Wednesday that he warned his father repeatedly that he believed a political operative now at the center of an election-fraud investigation had previously used illegal tactics to win votes.

John Harris, now an assistant U.S. attorney in Raleigh, said he advised his father in conversations and emails that he believed Leslie McCrae Dowless was “shady” and appeared to have illegally collected absentee ballots in 2016 while working for a different Republican candidate in North Carolina’s 9th Congressional District.

The younger Harris, who is 29, said he offered the advice to his father as he considered whether to hire Dowless to run his absentee-ballot program in the 2018 congressional race. He conveyed similar concerns to the campaign’s chief strategist, Andy Yates, he said. Mark Harris hired Dowless despite his son’s concerns, which he said he expressed starting in the spring of 2017.

At one point during his testimony, John Harris’s voice cracked and his father wept.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>


“The Cybersecurity 202: Election security is going to be the hot new Democratic campaign issue in 2020”<https://electionlawblog.org/?p=103683>
Posted on February 21, 2019 7:30 am<https://electionlawblog.org/?p=103683> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2019/02/21/the-cybersecurity-202-election-security-is-going-to-be-the-hot-new-democratic-campaign-issue-in-2020/5c6d9a8e1b326b71858c6be8/?utm_term=.97ef8055c5b9>:

Election security is already emerging as a key talking point on the campaign trail as Democrats offer up policies to secure votes from potential tampering and tout their own cybersecurity records — a sign they think this could be a strong wedge issue against President Trump.

Once-wonky security proposals are now applause lines with voters. Take Sen. Kamala Harris (D-Calif..), who made a shift to paper ballots a key talking point at a breakfast this week in New Hampshire: “Going back to the future, the best and smartest way to conduct voting: paper ballots. Because Russia can’t hack a piece of paper.” The crowd erupted in approval.

And Sen. Amy Klobuchar (D-Minn.) made the case for upgrading voting machines at a town hall in New Hampshire this week: Cyber “is the next arena for warfare. We’re already seeing it right now,” she said. “And just to give you an example, the bill that I had to upgrade our election equipment cost literally — bipartisan bill — 3 percent of one aircraft carrier.” In fact, all six U.S. senators that threw their hats in the ring for the Democratic nomination have co-sponsored bills aimed at protecting election systems against Russian hackers.
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Posted in election administration<https://electionlawblog.org/?cat=18>, The Voting Wars<https://electionlawblog.org/?cat=60>, voting technology<https://electionlawblog.org/?cat=40>


“How Bernie Sanders used the ‘Netflix’ model of political donations to raise millions”<https://electionlawblog.org/?p=103681>
Posted on February 21, 2019 7:14 am<https://electionlawblog.org/?p=103681> by Rick Hasen<https://electionlawblog.org/?author=3>

Fredreka Schouten<https://www.cnn.com/2019/02/21/politics/bernie-sanders-2020-power-of-recurring-donations/index.html> for CNN.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“Elections Commission Chief Uses the ‘Nuclear Option’ to Rescue the Agency From Gridlock”<https://electionlawblog.org/?p=103677>
Posted on February 20, 2019 5:20 pm<https://electionlawblog.org/?p=103677> by Rick Hasen<https://electionlawblog.org/?author=3>

Mother Jones:<https://www.motherjones.com/politics/2019/02/elections-commission-chief-uses-the-nuclear-option-to-rescue-the-agency-from-gridlock/>

The FEC chairmanship, which rotates among the commissioners each year, is mostly a ceremonial role without any real power. But Weintraub plans to use her veto power to stop the FEC from defending itself in court, since the agency needs four votes to initiate a legal defense.

So what happens when the FEC gets sued and is not authorized to defend itself, as Weintraub plans? “It has not happened in the history of the agency,” she told Mother Jones.

“If [the commissioners] are not going to vote to enforce the law, I’m not going to pull any punches and I’m not going to be shy about calling them out,” she said. “And if we get sued, that requires four votes to defend those kinds of lawsuits…I’m not going to authorize the use of agency resources to defend that litigation.”

Four campaign finance lawyers, including three who used to work at the FEC, confirmed to Mother Jones that Weintraub’s new strategy was unprecedented and could lead to significant changes to the campaign finance system, depending on how the courts respond.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, federal election commission<https://electionlawblog.org/?cat=24>


“‘Sustained and ongoing’ disinformation assault targets Dem presidential candidates”<https://electionlawblog.org/?p=103675>
Posted on February 20, 2019 2:05 pm<https://electionlawblog.org/?p=103675> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/story/2019/02/20/2020-candidates-social-media-attack-1176018>:

Recent posts that have received widespread dissemination include racially inflammatory memes and messaging involving Harris, O’Rourke and Warren. In Warren’s case, a false narrative surfaced alleging that a blackface doll appeared on a kitchen cabinet in the background of the senator’s New Year’s Eve Instagram livestream.

Not all of the activity is organized. Much of it appears to be organic, a reflection of the politically polarizing nature of some of the candidates. But there are clear signs of a coordinated effort of undetermined size that shares similar characteristics with the computational propaganda<https://comprop.oii.ox.ac.uk/research/ira-political-polarization/>
attacks launched by online trolls atRussia’s Internet Research Agency in the 2016 presidential campaign<https://www.justice.gov/file/1035477/download>, which special counsel Robert Mueller accused of aiming to undermine the political process and elevate Donald Trump.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>


Ringhand: British Parliamentary Committee, Citing “Insidious Ability” to Mislead Online, Calls for Election Law Changes<https://electionlawblog.org/?p=103673>
Posted on February 20, 2019 7:50 am<https://electionlawblog.org/?p=103673> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is a guest post from Lori Ringhand:<http://www.law.uga.edu/profile/lori-ringhand>

A report issued by a British Parliamentary committee generated headlines<https://www.nytimes.com/2019/02/18/business/facebook-uk-parliament-report.html> this week for its scathing takedown of Facebook’s data management practices. The report, however, also made detailed suggestions about how to update British election law to cope with the growing challenges presented by unregulated online electioneering activity.

The report<https://www.parliament.uk/business/committees/committees-a-z/commons-select/digital-culture-media-and-sport-committee/news/fake-news-report-published-17-19/>, Disinformation and Fake News, was issued by the House of Commons Digital, Culture, Media and Sport Committee. It is the result of one of several investigations in the UK triggered by concerns about foreign interference, data privacy, and the spread of online misinformation in the 2016 Brexit referendum.

The Committee’s description of the problem it set about to examine was grim:

“In a democracy, we need to experience a plurality of voices and, critically, to have the skills, experience, and knowledge to gauge the veracity of those voices. While the Internet has brought many freedoms across the world and an unprecedented ability to communicate, it also carries the insidious ability to distort, to mislead, and to produce hatred and instability. It functions on a scale and at a speed that is unprecedented in human history.”

The scope of the Committee’s investigation matched its assessment of the severity of the problem. The Committee worked for 18 months, heard from dozens of witnesses, and convened an “International Grand Committee” bringing together officials from nine legislative bodies around the world, all of whom are struggling to update their own regulations in this area.

The Committee made several important recommendations. Many of them focus on creating more transparency about who is disseminating election-related materials online, and how and why particular individuals are being targeted to see that material. These recommendations include extending existing “imprint” rules to online paid political advertisements (which in the UK, as in the US, are not covered by current disclaimer laws), and requiring social media platforms to validate the identify of entities purchasing political ads and to maintain an archive of all such ads. An additional recommendation would mandate that specific consent be obtained from social media users before personal data harvested online can be used for political profiling.

Other Committee recommendations grew out of concerns that spending that is already thought to be illegal under current law may nonetheless be funding online election-related activity. To address this concern, the Committee recommended strengthening existing law to make clear that foreign individuals, groups, and corporations are prohibited from making any election-related expenditures in the UK, and to more rigorously protect the system from political money laundering by ensuring that the named source of contributions made to electioneering groups is in fact the true source of the funds  (an issue that is at the heart of an ongoing criminal investigation<https://www.bbc.co.uk/news/uk-politics-46056337> into whether illegal foreign money was funneled to anti-EU groups during the Brexit campaign).

The most controversial part of the report, though, is likely to be the Committee’s recommendation calling for increased regulation of online material itself, and for large social media platforms to be responsible for policing that material on their sites. Under current law, social media platforms like Facebook are not treated as publishers, so are generally not liable for illegal content (such discriminatory employment ads, harassment, or copyright violations) appearing on their sites. The Committee recommends changing that, while also expanding the definition of such content to include “harmful” election-related material. The report explains this recommendation by stressing the growing ability of coordinated misinformation campaigns to wreak havoc in elections by spreading false, fraudulent, and digitally manipulated information online, and the apparent unwillingness of Facebook and other large platforms to do anything about it. But the Committee kicked the can down the road on the vexing question of how to define “harmful content” in this context, recommending instead that a new regulatory body be tasked with that unenviable task.
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Posted in social media and social protests<https://electionlawblog.org/?cat=58>


--
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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