[EL] ELB News and Commentary 11/4/19

Mon Nov 4 07:47:45 PST 2019

“Democratic Strategists Set Up $75 Million Digital Campaign to Counter Trump”<https://electionlawblog.org/?p=107900>
Posted on November 4, 2019 7:42 am<https://electionlawblog.org/?p=107900> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2019/11/04/us/politics/democratic-political-campaign-advertising.html>

A progressive organization is plunging itself into the presidential campaign, unveiling plans to spend $75 million on digital advertising to counter President Trump’s early spending advantage in key 2020 battleground states.

The effort, by a nonprofit group called Acronym and an affiliated political action committee, is an outgrowth of growing concern by some Democratic officials that Mr. Trump could build an insurmountable edge in those key states through massive early advertising efforts. Mr. Trump has spent more than $26 million so far nationally just on Facebook and Google, more than the four top-polling Democrats — Joseph R. Biden Jr., Elizabeth Warren, Bernie Sanders and Pete Buttigieg — have spent in total on those platforms….

Ms. McGowan said the group had already raised approximately 40 percent of the planned $75 million budget. Mr. Plouffe has joined as both a political adviser and to help raise funds. The spending will be made across two groups, Acronym, which is a nonprofit that does not disclose its donors, and Pacronym, a political action committee, which does. (The group’s winking moniker is a poke at the frequent practice of settling on a meaningful series of words to form an acronym for a nonprofit; they have skipped that alphabet-soup step entirely.)
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>, tax law and election law<https://electionlawblog.org/?cat=22>

New Hampshire: “Primary election chief back in spotlight after near-ouster”<https://electionlawblog.org/?p=107898>
Posted on November 4, 2019 7:36 am<https://electionlawblog.org/?p=107898> by Rick Hasen<https://electionlawblog.org/?author=3>

AP profiles<https://www.baltimoresun.com/sns-bc-us--election-2020-new-hampshire-20191104-story.html> NH SOS Bill Gardner.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Knight Foundation Announces Support for My Cheap Speech Project Among Many Worthy Projects<https://electionlawblog.org/?p=107896>
Posted on November 4, 2019 7:32 am<https://electionlawblog.org/?p=107896> by Rick Hasen<https://electionlawblog.org/?author=3>

I’m honored to be included among those announced today <https://www.knightfoundation.org/press/releases/knight-invests-million-research-to-national-debate-internet-governance-policy> as receiving support from the Knight Foundation. for work on internet governance and policy. I’ll be working on turning my cheap speech<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3017598> work<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3418427> into a book.

My terrific UCI colleague David Kaye will also receive Knight funding for a separate project. Here’s the relevant piece of the announcement:

University of California, Irvine Law School ($170,000): To support two research projects on the destabilizing effects of digital speech on American democracy and models of self-regulation and multi-stakeholder governance of content moderation on digital platforms.
Led by: Richard Hasen and David Kaye
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Posted in campaigns<https://electionlawblog.org/?cat=59>

“Americans Trust Local News. That Belief Is Being Exploited.”<https://electionlawblog.org/?p=107893>
Posted on November 3, 2019 6:06 pm<https://electionlawblog.org/?p=107893> by Rick Hasen<https://electionlawblog.org/?author=3>

Brendan Nyhan<https://www.nytimes.com/2019/10/31/upshot/fake-local-news.html> for NYT’s The Upshot:

The nature of the news misinformation problem may be changing. As consumers become more skeptical about the national news they encounter online, impostor local sites that promote ideological agendas are becoming more common. These sites exploit the relatively high trust Americans express in local news outlets — a potential vulnerability in Americans’ defenses against untrustworthy information.
Some misinformation in local news comes from foreign governments seeking to meddle in American domestic politics. Most notably, numerous Twitter accounts operated by the Russian Internet Research Agency were found<https://www.npr.org/2018/07/12/628085238/russian-influence-campaign-sought-to-exploit-americans-trust-in-local-news?t=1531410310230> to have impersonated local news aggregators during the 2016 election campaign.
A recent Senate Intelligence Committee report<https://www.intelligence.senate.gov/sites/default/files/documents/Report_Volume2.pdf> found that 54 such accounts published more than 500,000 tweets. According to researchers at N.Y.U., the fake local news accounts frequently directed readers<https://s18798.pcdn.co/smapp/wp-content/uploads/sites/1693/2018/11/SMaPP_Data_Report_2018_01_IRA_Links.pdf> to genuine local news articles about polarizing political and cultural topics.
Domestically grown dubious outlets are also proliferating. Last week, The Lansing State Journal reported<https://www.lansingstatejournal.com/story/news/local/2019/10/21/lansing-sun-new-sites-michigan-local-news-outlets/3984689002/> the existence of a network of more than 35 faux-local websites across Michigan with names like Battle Creek Times, Detroit City Wire, Lansing Sun and Grand Rapids Reporter.
Sign up for The Upshot Newsletter
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Posted in social media and social protests<https://electionlawblog.org/?cat=58>

“Trial begins in challenge to congressional district map”<https://electionlawblog.org/?p=107891>
Posted on November 3, 2019 5:57 pm<https://electionlawblog.org/?p=107891> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://apnews.com/e6ce94f848a4470a9463eba7c22c31ee>

African Americans make up more than a quarter of Alabama’s voting age population.

But only one of the state’s seven congressional districts is majority black.

A federal judge on Monday will begin a trial in a lawsuit that contends Alabama should have a second majority-black district and that the current map violates a section of the Voting Rights Act by depriving black voters of an opportunity to elect candidates of their choice to the U.S. House of Representatives. The state is disputing those claims and argues it would require gerrymandering to carve another district.
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>

Bob Stern 2020 Election Preview, Based on His UCLA Extension Class, in a Podcast Series<https://electionlawblog.org/?p=107889>
Posted on November 3, 2019 5:54 pm<https://electionlawblog.org/?p=107889> by Rick Hasen<https://electionlawblog.org/?author=3>

This should be good:

Kathay Feng of Common Cause, who discusses redistricting; https://soundcloud.com/ucla-extension/2020-election-preview-from-presidential-candidates-to-californias-ballot-measure-elections

California Secretary of State Alex Padilla, speaking about election security:https://soundcloud.com/ucla-extension/week-2-osher-presents-2020-election-preview-with-alex-padilla

Bob Naylor, former California Assembly Republican leader, who discusses the future of the Republican Party in California: https://soundcloud.com/ucla-extension/week-3-2020-election-preview-with-speaker-bob-naylor-former-republican-legislative-leader

Conan Nolan, host of KNBC Channel 4’s weekly show News Conference, speaking about covering politics: https://soundcloud.com/ucla-extension/ux-bobstern-20electionpodcast-wk4-v1-101719

Barry Fadem, president of National Popular Vote, speaking about how to enact an interstate compact that means the person who wins the Presidential popular vote becomes President: https://soundcloud.com/ucla-extension/week-5-osher-presents-2020-election-preview-guest-barry-fadem-president-national-popular-vote

Shakari Byerly, a pollster with Evitarus, who discusses polling techniques: https://soundcloud.com/ucla-extension/week-6-osher-presents-2020-election-preview-guest-shakari-byerly-evitarus
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Eastpointe to make Michigan history with ranked-choice voting”<https://electionlawblog.org/?p=107887>
Posted on November 3, 2019 5:52 pm<https://electionlawblog.org/?p=107887> by Rick Hasen<https://electionlawblog.org/?author=3>

AP reports.<https://www.detroitnews.com/story/news/local/macomb-county/2019/11/03/eastpointe-ranked-choice-voting-michigan-first/40538173/>
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Posted in alternative voting systems<https://electionlawblog.org/?cat=63>

Gates: RNC Had Advanced Notice of Wikileaks’ Release of Democrats’ Emails During 2016 Election<https://electionlawblog.org/?p=107885>
Posted on November 2, 2019 3:13 pm<https://electionlawblog.org/?p=107885> by Rick Hasen<https://electionlawblog.org/?author=3>

BuzzFeed:<https://www.buzzfeednews.com/article/emmaloop/rick-gates-trump-wikileaks-clinton-email-hack>

 President Donald Trump’s team was “very happy” that Wikileaks released emails hacked from the Democratic party during the 2016 race, a former campaign official told investigators from the special counsel’s office.

Rick Gates, who served as Trump’s deputy campaign chair, told Robert Mueller’s team last year that the release of the hacked emails “offered a mode of deflection for the campaign after a sink in polling numbers following Trump’s comments about Ted Cruz’s father at the end of the Republican National Convention,” according to interview summaries obtained by BuzzFeed News<https://www.buzzfeednews.com/article/jasonleopold/mueller-report-secret-memos-1?ref=bfnsplash>….

Gates also told investigators that the Republican National Committee had “non-public information” about the timing of the Wikileaks releases, but “did not specify who at the RNC knew this information.”
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>

Siva Vaidhyanathan NYT Oped Calls for Federal Ban on Microtargeting<https://electionlawblog.org/?p=107883>
Posted on November 2, 2019 3:07 pm<https://electionlawblog.org/?p=107883> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT oped:<https://www.nytimes.com/2019/11/02/opinion/facebook-zuckerberg-political-ads.html?action=click&module=Opinion&pgtype=Homepage>

If  Facebook’s leaders were willing to level with us, they would stop defending themselves by appealing to lofty values like free speech. They would focus instead on more practical realities: Facebook is incapable of vetting political ads effectively and consistently at the global scale. And political ads are essential to maintaining the company’s presence in countries around the world….

Might Facebook ban political ads altogether, like Twitter has? Mr. Zuckerberg could concede that it’s not an easy task. What’s not political? If an ad calling for a carbon tax is political, is an ad promoting the reputation of an oil company political? In an effort to provide transparency to political ads in the United States, Facebook has already shown how bad it is at distinguishing between political accounts and apolitical accounts, often mislabeling news outlets, think tanks and university departments as political entities.<https://www.niemanlab.org/2018/11/facebook-will-try-not-requiring-media-outlets-to-register-as-political-advertisers-at-least-in-the-uk/> Those are the false positives we know of. We have no idea how many false negatives Facebook has let slip through….

We should know better than to demand of Facebook’s leaders that they do what is not in the best interests of the company. Instead, citizens around the world should demand effective legislation that can curb Facebook’s power.

The key is to limit data collection and the use of personal data to ferry ads and other content to discrete segments of Facebook users — the very core of the Facebook business model.

This task would be easier in some countries than others. The First Amendment of the United States Constitution severely limits policy options in America. But here’s something Congress could do: restrict the targeting of political ads in any medium to the level of the electoral district of the race. Tailoring messages for African-American voters, men or gun enthusiasts would still be legal, as this rule would not govern content. But people not in those groups would see those tailored messages as well and could learn more about their candidates. This law would apply not just to Facebook, Twitter and YouTube, but also to all targeted ads delivered via cable boxes or devices.

I’m not as confident that such a law would survive First Amendment challenge.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, social media and social protests<https://electionlawblog.org/?cat=58>

“Judge orders Fairfax to allow GMU students to vote after their registrations were rejected”<https://electionlawblog.org/?p=107881>
Posted on November 2, 2019 12:49 pm<https://electionlawblog.org/?p=107881> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/local/virginia-politics/judge-orders-fairfax-to-allow-gmu-students-to-vote-after-their-registration-was-rejected/2019/11/01/3f8952da-fcd6-11e9-ac8c-8eced29ca6ef_story.html>

A federal judge ruled Friday that Fairfax County must allow 171 George Mason University students to vote next week after their voter registration applications were rejected<https://www.washingtonpost.com/politics/civil-rights-group-challenges-rejection-of-george-mason-student-voter-registrations/2019/10/24/10e27f60-f66e-11e9-8cf0-4cc99f74d127_story.html?tid=lk_inline_manual_1> for providing a generic university address.
U.S. District Judge Rossie D. Alston Jr. ordered the county to allow students who submitted their applications on or before Oct. 15 to correct their address information, giving them until 5 p.m. Saturday to do so.
If the students miss that deadline, they must be allowed to vote Tuesday with a provisional ballot at the university’s Merten Hall precinct if they provide their specific addresses beforehand, the judge ruled.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

FEC Chair Weintraub: “Don’t abolish political ads on social media. Stop microtargeting.”<https://electionlawblog.org/?p=107879>
Posted on November 2, 2019 12:43 pm<https://electionlawblog.org/?p=107879> by Rick Hasen<https://electionlawblog.org/?author=3>

Ellen Weintraub WaPo oped.<https://www.washingtonpost.com/opinions/2019/11/01/dont-abolish-political-ads-social-media-stop-microtargeting/>

She has also posted this State of the Commission report<https://www.fec.gov/resources/cms-content/documents/2019-11-01-State-of-the-Commission-ELW.pdf>, as the FEC continues without a quorum.
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Posted in federal election commission<https://electionlawblog.org/?cat=24>

Alabama: “Judge blocks Democrats from holding election for chair Saturday”<https://electionlawblog.org/?p=107877>
Posted on November 1, 2019 3:53 pm<https://electionlawblog.org/?p=107877> by Rick Hasen<https://electionlawblog.org/?author=3>

Al.com:<https://www.al.com/news/2019/11/decision-expected-on-whether-democrats-can-elect-chair-saturday.html>

Montgomery County Circuit Judge Greg Griffin issued a temporary restraining order today blocking a faction of the state Democratic party from holding elections for party chair and first vice chair on Saturday.
An attorney representing the party members who planned the elections has filed a notice of appeal to the state Supreme Court and said he expects the order to be lifted by Saturday morning.
Attorneys representing party Chair Nancy Worley and others who filed the lawsuit to block the meeting said the party would be thrown into “utter chaos” if the meeting proceeds, partly because it could result in more than one person being recognized as party chair.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Plaintiffs in Common Cause v. Lewis file appeal asking NC Supreme Court to review eight NC House districts that remain partisan gerrymanders”<https://electionlawblog.org/?p=107875>
Posted on November 1, 2019 2:11 pm<https://electionlawblog.org/?p=107875> by Rick Hasen<https://electionlawblog.org/?author=3>

Release:<https://www.commoncause.org/north-carolina/press-release/plaintiffs-in-common-cause-v-lewis-file-appeal-asking-nc-supreme-court-to-review-eight-nc-house-districts-that-remain-partisan-gerrymanders/>

Plaintiffs in the case of Common Cause v. Lewis on Friday filed a petition with the NC Supreme Court<http://www.commoncause.org/north-carolina/wp-content/uploads/sites/22/2019/11/Common-Cause-v.-Lewis-PDR-Final.pdf> asking the justices to immediately review the Superior Court’s approval of eight NC House districts that remain extreme partisan gerrymanders after the legislature’s court-ordered redraw. The districts in question are in two county groupings: Columbus-Pender-Robeson and Forsyth-Yadkin….

On Sept. 3, a panel of three judges in the Wake County Superior Court ruled unanimously in favor of plaintiffs in the case of Common Cause v. Lewis, finding that the Republican-controlled NC General Assembly violated the North Carolina Constitution when it gerrymandered the state’s legislative districts for partisan gain. The court ordered the legislature to redraw 56 NC House districts and 21 NC Senate districts following strict nonpartisan criteria and in full public view.

This week, the three-judge Wake County Superior Court panel accepted the legislature’s newly drawn districts. Today, Common Cause and other plaintiffs in the case filed a petition asking the NC Supreme Court to immediately review the Superior Court’s approval of eight of the legislature’s newly drawn NC House districts because they continue to be unconstitutional partisan gerrymanders. The districts in question are in two county groupings: Columbus-Pender-Robeson and Forsyth-Yadkin.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Divided En Banc 8th Circuit Strikes Down Application of Lobbying Law to Lobbyist Who Was Uncompensated and Engaged in No Spending; But Decision Ominous for Constitutionality of Lobbying Disclosure Laws Generally<https://electionlawblog.org/?p=107872>
Posted on November 1, 2019 12:46 pm<https://electionlawblog.org/?p=107872> by Rick Hasen<https://electionlawblog.org/?author=3>

If I had more time, I’d write this up, but for now I will leave you with just the link to Calzone v. Summers<https://ecf.ca8.uscourts.gov/opndir/19/11/172654P.pdf>.
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Posted in lobbying<https://electionlawblog.org/?cat=28>
“Democrats sue three battleground states over law that GOP candidates’ names be listed first on ballot”<https://electionlawblog.org/?p=107870>
Posted on November 1, 2019 12:00 pm<https://electionlawblog.org/?p=107870> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/democrats-sue-three-battleground-states-over-law-that-gop-candidates-names-be-listed-first-on-ballot/2019/11/01/b62c8f44-fcc0-11e9-8906-ab6b60de9124_story.html>

Democratic organizations filed lawsuits in Georgia, Arizona and Texas on Friday saying Republicans are given an unfair advantage by being listed first on those states’ general election ballots.

The traditionally red states Democrats hope to make competitive in 2020 have slightly different rules about ballot placement, but in each case, because Republicans control the governorships, every other race from president on down is listed with the Republican candidate first.

“We know from the social science that there is something called the ‘primacy effect,’ studied across all kinds of things that have nothing to do with politics,” said Marc Elias, a Washington-based Democratic attorney. “This is putting an invisible thumb on the scale for the Republican candidate.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Federal Court Holds Mississippi Vote Counting Rule (Which Could Affect Upcoming Election) is Likely Unconstitutional; It Denies Preliminary Injunction But Leaves Open Relief If Vote Counting Rule Affects Upcoming Election<https://electionlawblog.org/?p=107866>
Posted on November 1, 2019 9:59 am<https://electionlawblog.org/?p=107866> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the court’s order at this link.<https://electionlawblog.org/wp-content/uploads/hoseman.pdf>

“In their Complaint, Plaintiffs contend that three provisions of the Mississippi Constitution impair that choice. The provisions provide that successful candidates for state-level, statewide office must receive both the majority of the popular vote (“the Popular-Vote Rule”) and a plurality of votes in a majority of Mississippi House districts (“the Electoral-Vote Rule”). Miss. Const. art. V, § 140. If no candidate satisfies both the Popular-Vote and the Electoral-Vote Rules, then the “House-Vote Rule” applies, and “the House of Representatives shall proceed to choose [the winner] from the two persons who shall have received the highest number of popular votes.” Id. § 141. By their terms, sections 140 and 141 control statewide elections for governor….

[The court held the constitutional provision likely violates the one person, one vote rule of Gray v. Sanders. But it declined a preliminary injunction.]

Absent some impact on the election results, the constitutional injury
caused by discarded votes is outweighed by the harm a preliminary injunction would cause when the Court attempts to craft a new method for electing statewide officers on the eve of the election. So too, the public interest would not favor such intervention at this preliminary stage.5

FN 5: It is hard to ignore the impact the upcoming election may have on these issues. If the vote produces a split result under section 140 and is destined for a House vote under section 141, then a far more tangible injury could become imminent: the candidate with the majority vote could lose the election because votes were discarded under the Electoral-Vote Rule. The Court will not prejudge those issues, but under those circumstances the case would likely proceed to an expedited trial on the merits at least as to the Electoral-Vote Rule.

As Josh Chafetz notes<https://twitter.com/joshchafetz/status/1190305002218123265>, this is a terrible way to handle this issue. I’ve long argued that courts should avoid deciding things when it has to decide an election winner—the heat will be much more intense in that case.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Halloween’s Over. The FEC? Still a Zombie”<https://electionlawblog.org/?p=107864>
Posted on November 1, 2019 9:47 am<https://electionlawblog.org/?p=107864> by Rick Hasen<https://electionlawblog.org/?author=3>

CPI:<https://publicintegrity.org/federal-politics/fec-quorum-congress-trump-elections/>

These are dark times at the Federal Election Commission, which has now gone two months<https://publicintegrity.org/federal-politics/federal-election-commission-fec-to-effectively-shut-down/> without enough commissioners to enforce federal campaign finance laws.

That’s because U.S. senators and President Donald Trump have failed to strike an agreement to fill any of three vacancies on the six-member commission that needs a quorum of at least four warm bodies to conduct most any high-level business.

The agency therefore can’t pass new rules, pursue investigations, issue fines, even hold formal public meetings.

What does this mean for political candidates, the body politic and U.S. elections in general?

A lot, it turns out — little of it good.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, federal election commission<https://electionlawblog.org/?cat=24>

“The Technology 202: Here’s why Twitter may have trouble enforcing its own political ads ban”<https://electionlawblog.org/?p=107862>
Posted on November 1, 2019 9:45 am<https://electionlawblog.org/?p=107862> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/news/powerpost/paloma/the-technology-202/2019/11/01/the-technology-202-here-s-why-twitter-may-have-trouble-enforcing-its-own-political-ads-ban/5dbb1270602ff10cf14f98e2/> reports.
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Posted in campaigns<https://electionlawblog.org/?cat=59>

--
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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