[EL] ELB News and Commentary 11/8/19

Fri Nov 8 08:32:01 PST 2019

Trump, Bevin, and the Voter Fraud Dog That Didn’t Bark<https://electionlawblog.org/?p=108001>
Posted on November 8, 2019 8:28 am<https://electionlawblog.org/?p=108001> by Rick Hasen<https://electionlawblog.org/?author=3>

Yesterday at <https://slate.com/news-and-politics/2019/11/matt-bevin-andy-beshear-trump-stolen-kentucky-election.html> Slate<https://slate.com/news-and-politics/2019/11/matt-bevin-andy-beshear-trump-stolen-kentucky-election.html> I wrote <https://slate.com/news-and-politics/2019/11/matt-bevin-andy-beshear-trump-stolen-kentucky-election.html> about how Kentucky governor Matt Bevin has so far made unsubstantiated claims that voter fraud and other irregularities cost him the election against his Democratic opponent Andy Beshear, and that the Kentucky Senate President made noises suggesting that the state legislature could rely on a little-used procedure to take the election result away from Beshear, who currently leads by 5,000 votes, and hand it to Bevin. I suggested this would be a real instance of stealing an election, and it was exceedingly dangerous to our democracy.

Today brings good news that Republican members of the Kentucky legislature are speaking out against this idea. Either Bevin needs to come up with actual evidence putting Beshear’s lead in doubt or he needs to shut up.<https://www.kentucky.com/news/politics-government/article237113614.html>

hat’s very reassuring. And there’s something else that is worth mentioning. President Donald Trump, who has often made unsubstantiated claims of voter fraud (as chronicled in my upcoming book, Election Meltdown<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>), has not jumped on Bevin’s voter fraud bandwagon. He’s barely Bevin by name on Twitter since before the election. He wrote<https://twitter.com/realDonaldTrump/status/1191937709364928513>: “Won 5 out of 6 elections in Kentucky, including 5 great candidates that I spoke for and introduced last night. @MattBevin<https://twitter.com/MattBevin> picked up at least 15 points in last days, but perhaps not enough (Fake News will blame Trump!). ” His other tweet<https://twitter.com/realDonaldTrump/status/1192229368057085952> on Kentucky since the election mentioned the other state races Republicans won, listing the governor’s race as “tbd.”

It is great news that Trump has not fanned the flames here as he has in other elections. Now this may be because Republicans in the Kentucky legislature don’t like Bevin and won’t go to bat for him in a way that would have serious political costs. But whatever the reason, we should be thankful for this development.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“Congressional Democrats to Revive Equal Rights Amendment Push”<https://electionlawblog.org/?p=107999>
Posted on November 8, 2019 8:04 am<https://electionlawblog.org/?p=107999> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2019/11/07/us/politics/congress-era-equal-rights-amendment.html>

Democrats, buoyed by their party’s electoral sweep in Virginia this week, plan on Friday to revive the Equal Rights Amendment in Congress, embarking on what they hope is a final push to add the nearly century-old measure to enshrine equality of the sexes into the Constitution.
Representative Jerrold Nadler, the New York Democrat who is chairman of the House Judiciary Committee, will announce that his panel intends to mark up a bill eliminating the deadline for states to adopt the amendment, known as the E.R.A., which was one state short of the 38 needed for ratification when the deadline passed in 1982.

The aim is to clear the way for Virginia — where Democrats have just won control of the Legislature and are eager to approve the amendment — to become that final state. Although legal experts debate<https://www.nytimes.com/2019/11/06/us/politics/virginia-ratify-equal-rights-amendment.html?module=inline> whether Congress’s deadline was ever constitutionally valid, and whether it can now remove that deadline, doing so would seem to help carve a legal path for the amendment to be written into the Constitution. But both the House and the Republican-led Senate would have to vote to do so.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“The Cybersecurity 202: Swing state election websites aren’t secure against Russian hacking, McAfee says”<https://electionlawblog.org/?p=107997>
Posted on November 8, 2019 7:58 am<https://electionlawblog.org/?p=107997> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2019/11/08/the-cybersecurity-202-swing-state-election-websites-aren-t-secure-against-russian-hacking-mcafee-says/5dc45ee4602ff1184c31635c/>

County election websites in two battleground states are highly vulnerable to hacking by Russia or another adversary that might seek to disrupt the 2020 vote by misleading voters about polling locations or spreading other false information.

About 55 percent of county election websites in Wisconsin and about 45 percent in Michigan, both states that President Trump flipped from Democratic to Republican in 2016 lack a key and fairly standard security protection, according to data provided exclusively to me by the cybersecurity firm McAfee.

Without this protection, called HTTPS, it’s far easier for an adversary to hijack those sites to deliver false information, divert voters to phony sites that mimic the real ones or steal voters’ information, per McAfee. (You can often tell if a site has HTTPS protection if there’s a small lock icon to the left of a Web address.)
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Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>

xkcd Voting Referendum<https://electionlawblog.org/?p=107995>
Posted on November 8, 2019 7:51 am<https://electionlawblog.org/?p=107995> by Rick Hasen<https://electionlawblog.org/?author=3>
[cid:image002.png at 01D5960E.FDA623D0]
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Posted in alternative voting systems<https://electionlawblog.org/?cat=63>

Michael Rosin and David Post File Amicus Brief in Supreme Court Urging It to Take Washington State Faithless Elector Case<https://electionlawblog.org/?p=107993>
Posted on November 8, 2019 7:47 am<https://electionlawblog.org/?p=107993> by Rick Hasen<https://electionlawblog.org/?author=3>

Read it here.<https://www.supremecourt.gov/DocketPDF/19/19-465/121652/20191106155132796_19-456%20Chiafalo%20v%20Washington%20-%20Rosin%20Amicus%20Brief%20revd.pdf>
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Posted in electoral college<https://electionlawblog.org/?cat=44>, Supreme Court<https://electionlawblog.org/?cat=29>

Mississippi: “Black Democrat Wins in Redrawn District After Racial Gerrymander Case”<https://electionlawblog.org/?p=107990>
Posted on November 8, 2019 7:42 am<https://electionlawblog.org/?p=107990> by Rick Hasen<https://electionlawblog.org/?author=3>

Jackson Free Press:<https://www.jacksonfreepress.com/news/2019/nov/07/black-democrat-wins-redrawn-district-after-racial-/?fbclid=IwAR1KIl7wN6EymWrxuaEHES-MEdGjYH8CYOKoCgk_9FnCbiSUkLstf4CwKn0>

Even as Republicans swept statewide offices in Mississippi on Tuesday night, Joseph Thomas, an African American Democrat in a district that stretches across six counties, narrowly flipped a GOP-held Senate seat. Earlier this year, a federal court forced the GOP-led Legislature to redraw the boundaries for that district, Senate District 22, after finding that they had drawn it in a way that was intended to dilute black voting power<https://www.jacksonfreepress.com/news/2019/mar/27/mississippi-senate-approves-new-map-boost-black-vo/>.
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Posted in redistricting<https://electionlawblog.org/?cat=6>

“The Anti-Carolene Court”<https://electionlawblog.org/?p=107988>
Posted on November 7, 2019 7:37 pm<https://electionlawblog.org/?p=107988> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

Here’s the abstract for a new article<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3483321> of mine arguing that Rucho — along with much of the Court’s other election law jurisprudence — should be understood as the product of the Court’s aversion to Carolene Products-style pro-democratic judicial review. The piece is forthcoming in the Supreme Court Review.

Once upon a time, Carolene Products provided an inspiring charter for the exercise of the power of judicial review. Intervene to correct flaws in the political process, Carolene instructed courts, but otherwise allow American democracy to operate unimpeded. In this Article, I use the Supreme Court’s recent decision in Rucho v. Common Cause to argue that the current Court flips Carolene on its head. It both fails to act when the political process is malfunctioning and intercedes to block other actors from ameliorating American democracy. Rucho is the quintessential example of judicial apathy when, under Carolene, judicial engagement was sorely needed. The Court acknowledged that partisan gerrymandering offends democratic values like majoritarianism, responsiveness, and participation. But the Court didn’t take the obvious next step under Carolene and hold that extreme gerrymanders are unlawful. Instead it went in exactly the opposite direction, announcing that partisan gerrymandering claims are categorically nonjusticiable.

Rucho, however, is only the tip of the current Court’s anti-Carolene spear. Past cases have compounded (and future cases will likely exacerbate) the democratic damage by preventing non-judicial institutions from addressing defects in the political process. Looking back, the Court’s campaign finance decisions have struck down regulation after regulation aimed at curbing the harms of money in politics. Looking forward, the Court may well nullify the main non-judicial response to gerrymandering: independent redistricting commissions adopted through voter initiatives. What can possibly explain this doctrinal pattern? Conventional modes of analysis—originalism, judicial restraint, respect for precedent, and so on—all fail as justifications. They’re riddled by too many exceptions to be persuasive. What does seem to run like a red thread through the current Court’s rulings, though, is partisanship. The anti-Carolene Court may spurn pro-democratic judicial review precisely because, at this historical juncture, it often happens to be pro-Democratic.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“The Law of Electoral Democracy: Theory and Purpose”<https://electionlawblog.org/?p=107985>
Posted on November 7, 2019 5:06 pm<https://electionlawblog.org/?p=107985> by Rick Hasen<https://electionlawblog.org/?author=3>

Looking forward to reading this<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3253795> from Graeme Orr:

This chapter explores the question of ‘theory’ within the law of electoral democracy, by considering what it would mean for such a theory to exist given the contested nature of democracy itself.

It begins with a brief survey of the terms in question, including the emergence of electoral law as a field of study and its under-theorised state. It is quickly shown that, outside of a narrow and minimalist conception of a free election as one where votes are cast and counted, there is little agreement on the norms that should determine the law in this area, even on some fundamental concrete questions.

Normative coherence however can be demonstrated within competing approaches to the law. A social democratic theory of law is seen to provide salutary reminders. Reminders that democratic politics is collective more than individualist and that electoral democracy is not the whole of democracy. Within that tradition, the distinctive contribution of Keith Ewing to political finance – which he configures as party finance – is discussed.

Ultimately a four-sided functionalist account of the purposes of electoral law is offered. The four categories are: Structural Integrity, Democratic Values, Ritual Experience (all insider perspectives) and the cynical/outsider perspective of elections as a Game/Mask. The aim of the functionalist account is to show that whilst normative approaches may be sharply contested, we are not lost at sea: theory can help set the parameters of the ongoing debate over the shape of the law.
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Posted in theory<https://electionlawblog.org/?cat=41>

Revised Version of My Paper, Deep Fakes, Bots, and Siloed Justices: American Election Law in a Post-Truth World, Now Available<https://electionlawblog.org/?p=107983>
Posted on November 7, 2019 4:17 pm<https://electionlawblog.org/?p=107983> by Rick Hasen<https://electionlawblog.org/?author=3>

I’ve posted this revised version<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3418427> of my Childress Lecture at this link. The main difference is that I contrast my proposal for regulating deep fakes with recent California legislation. The final version will be published in a special symposium issue of the St. Louis U. Law Review with commentaries and other election law papers.

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

“Trump Ukraine Fracas Echoes Nixon, Clinton Campaign-Law Scandals”<https://electionlawblog.org/?p=107981>
Posted on November 7, 2019 3:40 pm<https://electionlawblog.org/?p=107981> by Rick Hasen<https://electionlawblog.org/?author=3>

Bloomberg reports.<https://about.bgov.com/news/trump-ukraine-fracas-echoes-nixon-clinton-campaign-law-scandals/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Ghost of Tom Hofeller: Republican Legislator Keeps Leaving North Carolina Legislative Meeting for Secret Consultations in Redrawing the State’s Congressional Districts Under Threat of Court Order<https://electionlawblog.org/?p=107979>
Posted on November 7, 2019 1:00 pm<https://electionlawblog.org/?p=107979> by Rick Hasen<https://electionlawblog.org/?author=3>

Daniel Jacobson<https://twitter.com/Dan_F_Jacobson/status/1192515607427723265>:
[cid:image003.jpg at 01D5960E.FDA623D0]<https://twitter.com/Dan_F_Jacobson>
<https://twitter.com/Dan_F_Jacobson>
Daniel Jacobson at Dan_F_Jacobson<https://twitter.com/Dan_F_Jacobson>

<https://twitter.com/Dan_F_Jacobson/status/1192515607427723265>

MORE DETAILS: every time Hise leaves, he asks for 7 copies of the latest version of the map to be printed. And one of the times this morning, he said “they” want to see what a particular map looks like. Who are these 7 people in the locked room? https://twitter.com/rickhasen/status/1192504085213143041 …<https://t.co/o0VqVgxVW3>
<https://twitter.com/rickhasen/status/1192504085213143041>
Rick Hasen<https://twitter.com/rickhasen/status/1192504085213143041>
✔@rickhasen<https://twitter.com/rickhasen/status/1192504085213143041>

Are the Republican #ncga legislators still leaving the public meeting for private consultations with the Ghost of Tom Hofeller to find out how they can keep some gerrymandering in the congressional plan? cc: @Dan_F_Jacobson https://twitter.com/EveryVoiceNC/status/1192503854388011008 …<https://twitter.com/rickhasen/status/1192504085213143041>

<https://twitter.com/intent/like?tweet_id=1192515607427723265>
94<https://twitter.com/intent/like?tweet_id=1192515607427723265>
10:54 AM - Nov 7, 2019<https://twitter.com/Dan_F_Jacobson/status/1192515607427723265>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
<https://twitter.com/Dan_F_Jacobson/status/1192515607427723265>
52 people are talking about this<https://twitter.com/Dan_F_Jacobson/status/1192515607427723265>

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Posted in chicanery<https://electionlawblog.org/?cat=12>, redistricting<https://electionlawblog.org/?cat=6>

“UPDATE: Trump campaign contest to win a meal with Trump was a fraud”<https://electionlawblog.org/?p=107977>
Posted on November 7, 2019 12:56 pm<https://electionlawblog.org/?p=107977> by Rick Hasen<https://electionlawblog.org/?author=3>

Popular Information reports.<https://popular.info/p/update-trump-campaign-contest-to>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Is America a democracy? If so, why does it deny millions the vote?”<https://electionlawblog.org/?p=107975>
Posted on November 7, 2019 12:50 pm<https://electionlawblog.org/?p=107975> by Rick Hasen<https://electionlawblog.org/?author=3>

Extensive piece<https://www.theguardian.com/us-news/2019/nov/07/is-america-a-democracy-if-so-why-does-it-deny-millions-the-vote> in The Guardian (which in a coup just hired<https://twitter.com/alastairgee/status/1192485847154728960> Sam Levine from HuffPost).
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>

“Should Facebook run political adverts containing lies?”<https://electionlawblog.org/?p=107973>
Posted on November 7, 2019 12:46 pm<https://electionlawblog.org/?p=107973> by Rick Hasen<https://electionlawblog.org/?author=3>

The Economist reports.<https://www.economist.com/united-states/2019/11/09/should-facebook-run-political-adverts-containing-lies>
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Posted in campaigns<https://electionlawblog.org/?cat=59>

Kentucky: “Republican lawmakers: Bevin can’t turn election dispute into ‘fishing expedition'”<https://electionlawblog.org/?p=107971>
Posted on November 7, 2019 12:44 pm<https://electionlawblog.org/?p=107971> by Rick Hasen<https://electionlawblog.org/?author=3>

Courier-Journal<https://www.courier-journal.com/story/news/politics/2019/11/07/kentucky-governor-race-bevin-should-stop-recanvass-lawmakers-say/2517278001/>:

Republicans in Kentucky’s legislature have expressed skepticism about Gov. Matt Bevin’s dispute with Tuesday night’s election results, saying the governor should back up his claims of “irregularities” and not drag the outcome beyond next week’s recanvass<https://www.courier-journal.com/story/news/politics/2019/11/06/kentucky-governor-race-matt-bevin-campaign-requests-recanvass/2510081001/>.

“If there is evidence of fraud or illegalities, as was alluded to last night, Governor Bevin should state his claim immediately and let the evidence be reviewed,” Rep. Jason Nemes, R-Louisville, wrote in a Facebook post on Wednesday. “But this is not an opportunity for a fishing expedition or a chance to overturn the election result.”
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>, recounts<https://electionlawblog.org/?cat=50>

“AP Exclusive: Steyer aide offered money for endorsements”<https://electionlawblog.org/?p=107969>
Posted on November 7, 2019 12:42 pm<https://electionlawblog.org/?p=107969> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://apnews.com/4f024bbad09c4e0f97005376f0614377>

A top aide to Democratic presidential candidate Tom Steyer in Iowa privately offered campaign contributions to local politicians in exchange for endorsing his White House bid, according to multiple people with direct knowledge of the conversations.

The overtures from Pat Murphy, a former state House speaker who is serving as a top adviser on Steyer’s Iowa campaign, aren’t illegal — though payments for endorsements would violate campaign finance laws if not disclosed. There’s no evidence that any Iowans accepted the offer or received contributions from Steyer’s campaign as compensation for their backing….

Experts say a campaign could violate campaign finance laws if they don’t disclose payments for endorsements.

“It’s legal if you disclose a payment for an endorsement on your campaign finance report,” said Adav Noti, a former Federal Election Commission attorney who now works for the nonpartisan Campaign Legal Center in Washington. But, he added, “It would be unlawful if you don’t disclose it, or you disclose it but try to hide who the recipient is, or try to hide what that purpose was.”

A trio of former Ron Paul aides faced legal trouble in 2016 over similar issues during the 2012 Iowa Republican caucus campaign. Campaign chairman Jesse Benton, campaign manager John Tate and deputy campaign manager Dimitri Kesari were convicted in 2016 of charges related to arranging and concealing payments for then-Iowa state Sen. Kent Sorenson, who switched his support from Michele Bachmann to Paul just six days before the Iowa caucuses. Sorenson served 15 months in jail for his role in the scheme.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>

“In 2020, Some Americans Will Vote On Their Phones. Is That The Future?”<https://electionlawblog.org/?p=107967>
Posted on November 7, 2019 12:38 pm<https://electionlawblog.org/?p=107967> by Rick Hasen<https://electionlawblog.org/?author=3>

Miles Parks for NPR<https://www.npr.org/2019/11/07/776403310/in-2020-some-americans-will-vote-on-their-phones-is-that-the-future>.
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Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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