[EL] ELB News and Commentary 5/24/19

Fri May 24 08:10:23 PDT 2019

“Trump Gives Attorney General Sweeping Power in Review of 2016 Campaign Inquiry”<https://electionlawblog.org/?p=105294>
Posted on May 24, 2019 8:07 am<https://electionlawblog.org/?p=105294> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2019/05/23/us/politics/trump-barr-intelligence.html>

President Trump took extraordinary steps on Thursday to give Attorney General William P. Barr sweeping new authorities to conduct a review into how the 2016 Trump campaign’s ties to Russia were investigated, significantly escalating the administration’s efforts to place those who investigated the campaign under scrutiny.

In a directive<https://twitter.com/realDonaldTrump/status/1131716322369392646>, Mr. Trump ordered the C.I.A. and the country’s 15 other intelligence agencies to cooperate with the review and granted Mr. Barr the authority to unilaterally declassify their documents. The move — which occurred just hours after the president again declared that those who led the investigation committed treason — gave Mr. Barr immense leverage over the intelligence community and enormous power over what the public learns about the roots of the Russia investigation.

The order is a change for Mr. Trump, who last year dropped a plan to release documents<https://www.nytimes.com/2018/09/21/us/politics/trump-classification-russian-documents.html?module=inline> related to the Russia investigation amid concerns from Justice Department officials who said making them public could damage national security. At the time, the president was being encouraged by a group of Republican Congress members to declassify the information.

Mr. Barr, who has used the word “spying” to describe how the Trump campaign was investigated, has been deeply involved in the department’s review of how intelligence was collected on the campaign. Mr. Barr has told Congress that he personally authorized the review. While he has asked John H. Durham, the United States attorney in Connecticut, to spearhead it, a Justice Department official said that Mr. Barr has personally met with the heads of the intelligence agencies to discuss the review and that the project was a top priority after the release last month of the special counsel’s report<https://www.nytimes.com/2019/04/18/us/politics/mueller-report-russian-interference-donald-trump.html?module=inline>.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>, Department of Justice<https://electionlawblog.org/?cat=26>

“Academic highlight: Hyatt is latest example of textualist-originalist justices’ willingness to overturn precedent”<https://electionlawblog.org/?p=105292>
Posted on May 24, 2019 8:00 am<https://electionlawblog.org/?p=105292> by Rick Hasen<https://electionlawblog.org/?author=3>

Really sharp Anita Krishnakumar piece<https://www.scotusblog.com/2019/05/academic-highlight-hyatt-is-latest-example-of-textualist-originalist-justices-willingness-to-overturn-precedent/#more-286284> at SCOTUSBlog.
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Posted in statutory interpretation<https://electionlawblog.org/?cat=21>, Supreme Court<https://electionlawblog.org/?cat=29>

“How a large-scale effort to register black voters led to a crackdown in Tennessee”<https://electionlawblog.org/?p=105290>
Posted on May 24, 2019 7:54 am<https://electionlawblog.org/?p=105290> by Rick Hasen<https://electionlawblog.org/?author=3>

Amy Gardner<https://www.washingtonpost.com/politics/how-a-large-scale-effort-to-register-black-voters-led-to-a-crackdown-in-tennessee/2019/05/24/9f6cee1e-7284-11e9-8be0-ca575670e91c_story.html?utm_term=.2df0df80a0b2&wpmk=MK0000200> for WaPo:

What played out in Tennessee illustrates the messiness that has accompanied some large-scale efforts to draw new Democratic voters into the electorate, providing an opening for critics to push for stricter rules. The fallout is part of a national clash between the two parties over access to the polls — one fueled by energized efforts on the left to expand the voting pool and new limits backed by Republican lawmakers, who often echo President Trump’s unsubstantiated claims of widespread fraud.

There is no definitive account of what exactly went wrong in Tennessee last year. Republicans, who control all arms of the government — including the state and county election commissions — did not formally investigate the matter before moving to pass the new law. As a result, there is no official account of how many applications were faulty, the source of the problems and whether the Tennessee Black Voter Project was to blame.

Local elections officials said the vast majority of problems were basic omissions, often in a single field on the forms — not the more-egregious examples that raised suspicions of fraud.

Nonetheless, as the issue played out in the state legislature, lawmakers focused on forms with fake names, or those of dead people or ineligible felons. They also used unverified and inconsistent figures to emphasize the threat of potential fraud, which has long been illegal in Tennessee, to further their case to impose new penalties on forms with mistakes and omissions.

The new law has prompted two federal lawsuits<https://andrewgoodman.org/news-list/voting-advocates-sue-tennessee-over-tougher-new-law/> accusing Tennessee<https://campaignlegal.org/press-releases/groups-challenge-new-tennessee-law-undermines-voter-registration> of voter suppression.
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Posted in election administration<https://electionlawblog.org/?cat=18>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>, The Voting Wars<https://electionlawblog.org/?cat=60>

“Republicans and the Voting Rights Act”<https://electionlawblog.org/?p=105288>
Posted on May 24, 2019 7:48 am<https://electionlawblog.org/?p=105288> by Rick Hasen<https://electionlawblog.org/?author=3>

Michael Morley has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3373396> on SSRN (forthcoming, Tulsa Law Review). Here is the abstract:

This invited essay reviews Jesse H. Rhodes’s book Ballot Blocked: The Political Erosion of the Voting Rights Act. The book’s main thesis is that Republican officials from all branches of government “adopted a sophisticated long-term strategy” of publicly supporting the Voting Rights Act throughout the half-century following its enactment while surreptitiously attempting to weaken and undermine it. This Essay critiques the book’s pervasive tendency to present most Republicans from across all branches of government throughout a period of over 50 years as acting in an almost monolithic fashion to achieve their supposedly shared goal of secretly undermining the Act.

Rather than attempting to undermine the Voting Rights Act, Republican administrations simply interpreted and enforced it somewhat differently than Democratic administrations – a common occurrence with many statutes. Ironically, Republican interpretations sometimes led to broader enforcement of the Act. Moreover, many of the considerations upon which Rhodes relies as evidence of Republicans’ supposed strategy to secretly erode the Act apply equally to Democratic administrations. In short, there is ample reason to believe both Democratic and Republican administrations faithfully enforced the Voting Rights Act, albeit sometimes according to differing interpretations and priorities.
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Posted in political parties<https://electionlawblog.org/?cat=25>, political polarization<https://electionlawblog.org/?cat=68>, Voting Rights Act<https://electionlawblog.org/?cat=15>

Kobach Says He “Turned Down” Immigration Czar Job, Contrary to Report in the NYT<https://electionlawblog.org/?p=105285>
Posted on May 23, 2019 7:22 pm<https://electionlawblog.org/?p=105285> by Rick Hasen<https://electionlawblog.org/?author=3>

“Kris Kobach<https://www.washingtontimes.com/topics/kris-kobach/> said Wednesday he turned down an immigration adviser’s position at Homeland Security because it doesn’t carry enough weight to be able to solve the border crisis.” No denial in this Wash. Times piece<https://www.washingtontimes.com/news/2019/may/22/kris-kobach-turned-down-homeland-security-position/> of his ten demands for the job.

NYT tells a slightly different story<https://www.nytimes.com/2019/05/21/us/politics/trump-ken-cuccinelli-immigration.html?searchResultPosition=1>:

Mr. Cuccinelli and Kris Kobach, the former Kansas secretary of state, were both under consideration for the immigration role. But Mr. Cuccinelli was always seen within the White House as the favorite, and Mr. Kobach did not help his case with Mr. Trump and some of his advisers with a list of the 10 “requirements” he had for taking the job<https://www.nytimes.com/2019/05/20/us/politics/kris-kobach-trump.html?module=inline>, including access to a government jet 24 hours a day, weekends off with his family in Kansas and a promise to be nominated for Mr. McAleenan’s job by November if he wanted it.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Faked Pelosi videos, slowed to make her appear drunk, spread across social media”<https://electionlawblog.org/?p=105283>
Posted on May 23, 2019 2:13 pm<https://electionlawblog.org/?p=105283> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/technology/2019/05/23/faked-pelosi-videos-slowed-make-her-appear-drunk-spread-across-social-media/?utm_term=.af36d352e2bc>

Distorted videos of House Speaker Nancy Pelosi (D-Calif.), altered to make her sound as if she’s drunkenly slurring her words, are spreading rapidly across social media, highlighting how political disinformation that clouds public understanding can now spread at the speed of the Web.

The video of Pelosi’s onstage speech<https://www.c-span.org/video/?460960-1/speaker-pelosi-center-american-progress-ideas-conference> Wednesday at a Center for American Progress event, in which she said President Trump’s refusal to cooperate with congressional investigations was tantamount to a “coverup,” was subtly edited to make her voice sound garbled and warped. It was then circulated widely across Twitter, YouTube and Facebook.

One version<https://www.facebook.com/PoliticsWatchDog/videos/409823189602380/>, posted by the conservative Facebook page Politics WatchDog, has been viewed more than 1.4 million times, been shared more than 32,000 times, and garnered 16,000 comments with users calling her “drunk” and “a babbling mess.”…

Analyses of the video by Washington Post journalists and outside researchers indicate that the video has been slowed to about 75 percent of its original speed. To possibly correct for how that speed change would deepen her tone, the video also appears to have been altered to modify her pitch, to more closely resemble the sound of her natural speech.

The altered video’s spread highlights the subtle way that viral misinformation could shape public understanding in the run-up to the 2020 election. Spreaders of misinformation don’t need sophisticated technology to go viral: Even simple, crude manipulations can be used to undermine an opponent or score political points.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>, social media and social protests<https://electionlawblog.org/?cat=58>

“Florida officials wanted an elections cybersecurity team. Lawmakers said no.”<https://electionlawblog.org/?p=105281>
Posted on May 23, 2019 2:08 pm<https://electionlawblog.org/?p=105281> by Rick Hasen<https://electionlawblog.org/?author=3>

The Tampa Bay Times reports.<https://www.tampabay.com/florida-politics/buzz/2019/05/22/florida-officials-wanted-an-elections-cybersecurity-team-lawmakers-said-no/>
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Posted in election administration<https://electionlawblog.org/?cat=18>

Smartphone Voting in Denver<https://electionlawblog.org/?p=105279>
Posted on May 23, 2019 11:26 am<https://electionlawblog.org/?p=105279> by Rick Hasen<https://electionlawblog.org/?author=3>

Steven Rosenfeld<https://www.nationalmemo.com/counting-voatz-inside-americas-most-radical-voting-technology/>:

Two days after May’s city elections, Denver’s Elections Division held a low-profile audit of key parts of America’s most radical new voting system.

Over several weeks, 119 residents who were overseas had been using their smartphones to identify themselves and mark and submit their ballots online via blockchains, an encryption and storage method. The voters would get an emailed receipt listing their ballot choices, and later a survey asking what they thought about smartphone voting.

Denver and its technology and philanthropic partners were not just showing how they served overseas voters<https://www.denvergov.org/content/dam/denvergov/Portals/778/documents/DenverUOCAVAPilotSocial2.pdf>. They were presenting an unprecedented digital evidence trail, as there had never been a similar open audit of ballot receipts, ballot images and voting data kept on blockchains. The city was showing how far smartphone voting had come—an internet system whose proponents envision millions of Americans eventually using, but one that critics maintain is inherently untrustworthy.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Washington State Supreme Court upholds fines for 2016 faithless electors”<https://electionlawblog.org/?p=105277>
Posted on May 23, 2019 11:24 am<https://electionlawblog.org/?p=105277> by Rick Hasen<https://electionlawblog.org/?author=3>

Derek Muller<https://excessofdemocracy.com/blog/2019/5/washington-state-supreme-court-upholds-fines-for-2016-faithless-electors>:

In the latest of a string of litigation surrounding faithless electors<http://excessofdemocracy.com/blog/2017/12/status-of-2016-faithless-presidential-elector-litigation>, the Washington State Supreme Court has issued its decision in In re Guerra, here<https://www.courts.wa.gov/opinions/pdf/953473.pdf>. Four electors cast votes for candidates other than Hillary Clinton and Tim Kaine; all four were fined $1000 each pursuant to state law. Three appealed the decision. In an 8-1 decision, the Court upheld the fines.
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Posted in electoral college<https://electionlawblog.org/?cat=44>

--
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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