[EL] ELB News and Commentary 7/11/19

Thu Jul 11 09:15:44 PDT 2019

My New Essay/ Forthcoming Lecture: “Deep Fakes, Bots, and Siloed Justices: American Election Law in a Post-Truth World”<https://electionlawblog.org/?p=106180>
Posted on July 11, 2019 9:14 am<https://electionlawblog.org/?p=106180> by Rick Hasen<https://electionlawblog.org/?author=3>

I have posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3418427> on SSRN. I will be delivering a version of this paper as the 2019 Richard J. Childress Memorial Lecture<https://www.slu.edu/law/law-journal/programs/childress-lecture.php> at St. Louis University on October 11. There will be a great line up of commentators and other election law papers presented as well. Here is the abstract:

This Essay forms the basis for the 2019 Richard J. Childress Memorial Lecture, to be delivered at St. Louis University in October 2019.
About a decade or so ago, the major questions in the field of election law were familiar to scholars and centered on the Supreme Court, including the constitutionality of corporate spending limits in candidate campaigns, the constitutionality of the preclearance provision of the Voting Rights Act, and the constitutionality of strict state voter identification laws. While issues related to these cases continue to churn in the courts and remain of vital importance to American democracy, some of today’s most urgent election law questions seem fundamentally different and less Court-centric than those of the past, thanks to rapid technological change during a period of hyperpolarization that has called into question the ability of people to separate truth from falsity.
These questions include: What can be done consistent with the First Amendment and without raising the risk of censorship to ensure that voters can make informed election decisions despite a flood of virally-spread false and misleading speech, audio, and images? How can the United States minimize foreign disinformation campaigns aimed at American elections and attempts to sow social discord via bot armies? How can voters obtain accurate information about who is trying to influence them via social media and other new forms of technology? How can we expect judges to evaluate contested voting rights claims when they, like others, may live in information cocoons in which the one-sided media they consume affects their factual priors? Will voters on the losing end of a close election trust vote totals and election results announced by election officials when voters are bombarded with conspiracy theories about the reliability of voting technology and when foreign adversaries target voting systems to undermine confidence?
This Essay considers election law in the post-truth era, one in which it has become increasingly difficult for voters to separate true from false information relevant to election campaigns. Rapid technological change and the rise of social media have upended the traditional media’s business model and radically changed how people communicate, educate, and persuade. The decline of the traditional media as information intermediaries has transformed—and coarsened—social and political communication, making it easier for misinformation and vitriol to spread. The result? Political campaigns that increasingly take place under conditions of voter mistrust and groupthink, with the potential for foreign interference and domestic political manipulation via new and increasingly sophisticated technological tools. Such dramatic changes raise deep questions about the conditions of electoral legitimacy and threaten to shake the foundation of democratic governance.
Part II of this Essay briefly describes what I mean by the “post-truth” era in politics. Part III examines the effects of the post-truth era on campaign law, arguing for a new law requiring social media to label as “altered” synthetic media, including so-called “deep fakes.” I defend such a law as necessary to support the government’s compelling interest in assuring voters have access to truthful political information. Part IV considers campaign finance law, arguing for campaign disclosure laws requiring those who use online and social media to influence voters, including those using bots and other new technology, to disclose their true identities and the sources and amounts of their spending. Part V considers the difficulty of using courts to adjudicate voting rights claims when there is fundamental disagreement about the basic facts related to issues such as voter fraud in our hyperpolarized, cocooned political environment. The Essay concludes with some thoughts on whether election law is up to the task of dealing with technological change and polarization which threaten some of the key suppositions of how democracy is intended to function, including as an aid to the peaceful transition of power.

Comments welcome!
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>, social media and social protests<https://electionlawblog.org/?cat=58>

“Judge allows outside inspection of Georgia voting system”<https://electionlawblog.org/?p=106184>
Posted on July 11, 2019 9:12 am<https://electionlawblog.org/?p=106184> by Rick Hasen<https://electionlawblog.org/?author=3>

AJC<https://www.ajc.com/news/state--regional-govt--politics/judge-allows-outside-inspection-georgia-voting-system/dKJsagtRo3VULtKlM7e6mM/>:

The insides of Georgia’s voting system will be cracked open for inspection as part of a lawsuit alleging that the state’s elections are vulnerable<https://www.ajc.com/news/state--regional-govt--politics/judge-allows-lawsuit-seeking-paper-ballots-georgia-advance/VWQB2ayD2IbIXmtvKhboEL/> to inaccuracies, malfunctions and hacking.

U.S. District Judge Amy Totenberg on Tuesday ordered election officials to allow computer experts to review databases used to configure ballots and tabulate votes.
The ruling comes in a lawsuit by election integrity advocates who doubt the accuracy<https://www.ajc.com/news/state--regional-govt--politics/can-georgia-electronic-voting-machines-trusted/QQbzOXGzieODS64yu6cFjJ/> of Georgia’s electronic voting machines and are asking Totenberg to require that elections be conducted on paper ballots filled out with a pen.
The review of election management databases is needed to understand what caused problems during November’s heated race for governor between Republican Brian Kemp and Democrat Stacey Abrams, said Bruce Brown, an attorney for some of the plaintiffs.
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Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>

“Trump officials warn of ‘active threats’ to US elections”<https://electionlawblog.org/?p=106182>
Posted on July 11, 2019 9:10 am<https://electionlawblog.org/?p=106182> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://www.thetelegraph.com/news/article/Trump-officials-to-brief-Congress-on-election-14085405.php?utm_campaign=CMS%20Sharing%20Tools%20(Desktop)&utm_source=t.co&utm_medium=referral>:

 The Trump administration warned of unspecified “active threats” to U.S. elections as top security officials briefed Congress Wednesday on steps the government has taken to improve election security in the wake of Russian interference in 2016.
Director of National Intelligence Dan Coats, FBI Director Christopher Wray and other officials “made it clear there are active threats and they’re doing everything they can” to stop them, said Rep. Debbie Dingell, D-Mich. Dingell called the closed-door presentation “very impressive” and said the issue was “one we all need to take seriously.”
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>

President Trump Planning Some Kind of “Executive Action” on the Census: What Comes Next? Not Necessarily a Constitutional Crisis<https://electionlawblog.org/?p=106178>
Posted on July 11, 2019 8:37 am<https://electionlawblog.org/?p=106178> by Rick Hasen<https://electionlawblog.org/?author=3>

I’m seeing a lot of hyperventilating on Twitter and elsewhere about how President Trump is about to start a constitutional crisis through an executive order that would mandate inclusion of the citizenship question on the census. If Trump actually ordered Commerce Department officials to do so, in the face of two court orders barring inclusion of the question, that would indeed be a constitutional crisis.

But the latest NYT reporting <https://www.nytimes.com/2019/07/11/us/politics/census-trump-executive-action.html> suggests Trump is not likely to go there:

Mr. Trump said on Twitter that he would hold an afternoon news conference on the issues of “census and citizenship” days after his attorney general, William P. Barr, suggested he thought there could be a legal path to placing the citizenship question on the census after the Supreme Court blocked its inclusion last month.
Mr. Trump may not issue an executive order on the citizenship question, according to aides briefed on the plan. Executive orders attempt to impose a sweeping unilateral change, as the president has done over 100 times during his presidency, setting up various legal entanglements.
One option, aides said, is a presidential memorandum that is essentially meant to put his administration’s view on the issue into writing. Mr. Trump has written over 40 memorandums since the beginning of his presidency to pursue policy changes on issues ranging from rural broadband internet access to the service of transgender people in the military.

If Trump goes this route, as the Times‘ article notes, it would still be subject to review by the courts. Here’s what I wrote on this last week in Gaming Out the Census Citizenship Question Endgame: What Comes Next, and How Will Things End?<https://electionlawblog.org/?p=106084>:

The DOJ lawyers are in a bind because they know that it can’t be just a pretext, and yet the President is ordering them to act. This puts them in an ethical dilemma, one which seemed to catch them off guard<https://electionlawblog.org/?p=106038>.
But assuming at least some political folks are willing to do Trump’s bidding, the government could indicate it is working on a new set of reasons for including the question. As Marty Lederman has suggested, it could be as simple as citing to footnote 1 in Justice Alito’s separate opinion in Department of Commerce: “As a 2016 Census Bureau guidance document explained, obtaining citizenship statistics is “essential for agencies and policy makers setting and evaluating immigration policies and laws, understanding how different immigrant groups are assimilated, and monitoring against discrimination.” The reasons could be in a statement from Secretary Ross, or an executive order from the President.
Some say the executive order could help things for the Administration, since the President is not subject to the Administrative Procedure Act and doesn’t have to offer reasons for his actions.
But the problem for the administration is that there are injunctions in place preventing the inclusion of the question, whether or not the APA applies. And if it still looks like the Administration is offering a pretext, I do not expect the lower courts to lift those injunctions. (There has even been talk of the Administration simply ignoring the courts<https://www.foxnews.com/politics/gop-congressman-trump-ignore-supreme-court-print-census-citizenship-question>, which would create a constitutional crisis.)
If the administration goes forward with the new reason, there will be a quick resolution of the equal protection claim in the Maryland Court. (This is the claim that the question was added with the intent to discriminate on the basis of race.) This is an issue the Supreme Court never decided, and would present an independent ground to block the question. And the lower court judge in the Department of Commerce case also would have to be convinced that any new reason is not a new pretext.
This means that if the Administration pushes the issue, it is going to be back before the Supreme Court, during the summer, with Justices scattered and new clerks in place. I said earlier that Chief Justice Roberts left a window open, but he left it open for a DOJ and Administration to act in a savvy way. These reversals and rule via tweet smack of amateur hour. This has got to be annoying Roberts, who is no doubt paying attention.
So it still all comes down to Roberts, if the administration wishes to push this hard. And I don’t know what Roberts will do, but the last two weeks have not helped the Administration’s case.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>

“To unlock the youth vote in 2020, Democrats wage legal fights against GOP-backed voting restrictions”<https://electionlawblog.org/?p=106175>
Posted on July 11, 2019 8:27 am<https://electionlawblog.org/?p=106175> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/to-unlock-the-youth-vote-in-2020-democrats-wage-legal-fights-against-gop-backed-voting-restrictions/2019/07/10/f3c51dd4-8e17-11e9-b08e-cfd89bd36d4e_story.html?utm_term=.ed986558e7ef>:

The fight in New Hampshire is one of at least a dozen legal skirmishes being waged across the country, in the run-up to the 2020 election, that are financed by Democrats and liberal activists who hope to overturn or head off measures they fear could erode the electoral might of young voters — an increasingly left-leaning voting bloc.

Over the past decade, Republicans in more than a dozen states have tried to limit the kinds of student IDs that can be used at the polls, restricted the number of polling locations on or near college campuses, or gerrymandered political boundaries that divide campuses and dilute the power of student voters, as well as other measures.

Among the states with laws that Democrats fear could hamper the youth vote in 2020 are battlegrounds including Wisconsin, Florida and New Hampshire.

Republicans say the rules are meant to prevent fraud and safeguard the integrity of elections, and they deny accusations that they are trying to make it harder for young people to vote.

But there is little doubt that Democrats had more to gain when young voters engaged in recent elections. Voters under 30 turned out in record numbers last fall, helping to power a liberal wave that swept Democrats into power in Congress.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Colin Kaepernick’s skin appears darkened in Republican campaign fundraiser ad”<https://electionlawblog.org/?p=106173>
Posted on July 11, 2019 8:22 am<https://electionlawblog.org/?p=106173> by Rick Hasen<https://electionlawblog.org/?author=3>

Yahoo News reports.<https://news.yahoo.com/republican-nrcc-darken-colin-kaepernick-skin-ad-134501694.html>
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Posted in campaigns<https://electionlawblog.org/?cat=59>

“Dems clash with Republicans over election security”<https://electionlawblog.org/?p=106170>
Posted on July 10, 2019 5:14 pm<https://electionlawblog.org/?p=106170> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/story/2019/07/10/mcconnell-obama-russia-election-security-1405742>:

House Democrats and Senate Republicans may have attended similar classified briefings on election security Wednesday, but they left with opposite conclusions.

House Democrats expressed deep concerns about the White House’s ability to protect voting systems in 2020, drawing fresh scrutiny to the administration’s efforts to prevent foreign meddling in another election. But Senate Republicans said they had faith in the administration’s handling of the issue and saw no need for further legislation on election security.

The divergent reactions suggests that while both parties acknowledge the role of Russian interference in the 2016 election, detailed in former special counsel Robert Mueller’s report this spring, Congress is unlikely to take any further legislative action.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, election administration<https://electionlawblog.org/?cat=18>, The Voting Wars<https://electionlawblog.org/?cat=60>

“Gibberish in Supreme Court opinions: Given that John Roberts is scarcely stupid, what explains the stupidity of part of his opinion in Rucho?”<https://electionlawblog.org/?p=106168>
Posted on July 10, 2019 4:33 pm<https://electionlawblog.org/?p=106168> by Rick Hasen<https://electionlawblog.org/?author=3>

Good question<http://balkin.blogspot.com/2019/07/gibberish-in-supreme-court-opinions.html> from Sandy Levinson. I’ve been pondering this question since I read Rucho (mostly on grounds that Roberts (deliberately?) misrepresented the plaintiffs’ symmetry arguments as those in favor of proportional representation).
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Justin Levitt Guest Blogging July 13-20<https://electionlawblog.org/?p=106166>
Posted on July 10, 2019 4:17 pm<https://electionlawblog.org/?p=106166> by Rick Hasen<https://electionlawblog.org/?author=3>

I hope to be as off the grid as I can from this Saturday through the next (though maybe I won’t be able to resist something on the census or Mueller).

I leave you in the excellent hands of Justin Levitt<https://www.lls.edu/faculty/facultylistl-r/levittjustin/>. Please direct all of your tips and suggestions to him.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“New protections for Georgia absentee ballots settle lawsuits”<https://electionlawblog.org/?p=106164>
Posted on July 10, 2019 9:44 am<https://electionlawblog.org/?p=106164> by Rick Hasen<https://electionlawblog.org/?author=3>

AJC:<https://www.ajc.com/news/state--regional-govt--politics/new-protections-for-georgia-absentee-ballots-settles-lawsuits/vhRcux8zJydbpwDq9xvqLO/>

A new Georgia law that prevents absentee ballot rejections has resolved two federal lawsuits over last fall’s election.

The law prohibits election officials from disqualifying absentee ballots because of a signature mismatch<https://www.ajc.com/news/local-govt--politics/breaking-judge-proposes-injunction-absentee-ballot-rejections/drBFCpDG2Kmn1kJwQxItMJ/> or a missing birth year and address. These protections for absentee voting led to the lawsuits’ dismissal.
“The parties agree that the above-cited provisions make further litigation of this matter unnecessary,” according to a joint stipulation for dismissal last month.

The lawsuits were filed as county election officials rejected nearly 7,000 absentee ballots<https://www.ajc.com/news/state--regional-govt--politics/ajc-analysis-absentee-voting-pitfalls-tripped-thousands-voters/5Qu6ynxydaKrT4le1edtPL/> in the November election, often for minor transgressions such as marking the outside of the absentee ballot envelope incorrectly.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

--
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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