[EL] ELB News and Commentary 10/29/19

[Rick Hasen]

“Dissent Erupts at Facebook Over Hands-Off Stance on Political Ads”<https://electionlawblog.org/?p=107827>
Posted on October 28, 2019 8:04 pm<https://electionlawblog.org/?p=107827> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2019/10/28/technology/facebook-mark-zuckerberg-political-ads.html>

The letter was aimed at Mark Zuckerberg, Facebook’s chief executive, and his top lieutenants. It decried the social network’s recent decision to let politicians post any claims they wanted<https://www.nytimes.com/2019/10/08/technology/facebook-trump-biden-ad.html?module=inline> — even false ones — in ads on the site. It asked Facebook’s leaders to rethink the stance.

The message was written by Facebook’s own employees.
Facebook’s position on political advertising is “a threat to what FB stands for,” the employees wrote in the letter, which was obtained by The New York Times. “We strongly object to this policy as it stands.”

For the past two weeks, the text of the letter has been publicly visible on Facebook Workplace, a software program that the Silicon Valley company uses to communicate internally. More than 250 employees have signed the message, according to three people who have seen it and who declined to be identified for fear of retaliation.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, social media and social protests<https://electionlawblog.org/?cat=58>


“Pro-Trump super PACs draw scrutiny for Facebook ads seeking voter registration data”<https://electionlawblog.org/?p=107825>
Posted on October 28, 2019 7:55 pm<https://electionlawblog.org/?p=107825> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/technology/2019/10/28/pro-trump-super-pacs-draw-scrutiny-facebook-ads-seeking-voter-registration-data/>

Thousands of Facebook users in Arizona may have been startled to see a strange warning appear in their social feeds earlier this month.
“Official records show that your voter registration is incomplete,” began the post. “Follow the link below to complete your voter registration NOW!”

But the message didn’t come from local government officials or civic groups that encourage people to vote. Rather, it was an ad from a super PAC supporting President Trump — part of an effort by allies of the Trump White House to mobilize users on Facebook and harness their personal data, in a way that’s left some experts and voting-rights advocates spooked.

The Arizona ad, paid for by the Committee to Defend the President<https://www.facebook.com/ads/library/?active_status=all&ad_type=political_and_issue_ads&country=US&impression_search_field=has_impressions_lifetime&view_all_page_id=161453087348302>, is one of roughly two dozen such ads that two pro-Trump super PACs have purchased on Facebook over the past five months, according to an analysis of Facebook’s advertising archive by The Washington Post. Some of the ads falsely suggest that Democrats are purging voter rolls; others direct viewers to some version of a voter-registration form, but only after they submit information, such as their names, email addresses and political affiliations.

Responding to an inquiry from The Post, Facebook said this weekend that it was removing four of the voting-related ads for violating its policies. A spokesperson for the tech giant said it would send other ads purchased by another pro-Trump group, Great America PAC<https://www.facebook.com/ads/library/?active_status=all&ad_type=political_and_issue_ads&country=US&impression_search_field=has_impressions_lifetime&view_all_page_id=178024352559210>, to third-party fact-checkers to verify their assertions about states purging voter rolls.
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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>


3-Judge North Carolina State Court Blocks Use of NC Congressional Districts as Likely Partisan Gerrymanders; Approves New Legislative Maps for State District Elections: What It Means and What Is Next?<https://electionlawblog.org/?p=107822>
Posted on October 28, 2019 5:10 pm<https://electionlawblog.org/?p=107822> by Rick Hasen<https://electionlawblog.org/?author=3>

Today a three-judge considering partisan gerrymanders under the North Carolina state constitution issued two orders. In one order, the court approved<https://www.scribd.com/document/432447604/State-Nc-Order> the North Carolina General Assembly’s maps for state legislative district lines passed after the court had earlier found a partisan gerrymander.

In the other order,<https://www.scribd.com/document/432447605/Congress-Nc-Order> the court held that the congressional districts used in North Carolina likely are also partisan gerrymanders under the state constitution. The court temporarily blocked the use of those districts. The court will expedite consideration of a summary judgment motion of the plaintiffs to fully resolve the issues, but in the meantime the court urged the North Carolina General Assembly to draw maps that would solve the gerrymandering problem.

Plaintiffs were not happy with the legislatively drawn maps in relation to the state legislative districts, and they could choose to appeal this to the state supreme court, which could order the alteration of additional district lines or remand it to the lower court to have new lines drawn by special master Nate Persily.

The North Carolina defendants have an interesting choice to make. They could appeal the granting of this preliminary injunction in the state supreme court, though they are not likely to get a very good reception there given both the egregious nature of the gerrymander (it was the subject of the Rucho case at the U.S. Supreme Court deciding only federal constitutional issues) and the Democratic lean of the state supreme court. Alternatively, the state defendants could decide to redraw the district lines now, knowing that in doing so they might end up getting something approved which is more positive from their viewpoint than what might be done with a special master.

Indeed, one might think of these two simultaneous opinions as offering a carrot and stick to North Carolina Republicans and their legislative leaders.
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Posted in redistricting<https://electionlawblog.org/?cat=6>


Today’s Must Read from Jessica Huseman in ProPublica: “The Market for Voting Machines Is Broken. This Company Has Thrived in It”<https://electionlawblog.org/?p=107820>
Posted on October 28, 2019 4:43 pm<https://electionlawblog.org/?p=107820> by Rick Hasen<https://electionlawblog.org/?author=3>

ProPublica:<https://www.propublica.org/article/the-market-for-voting-machines-is-broken-this-company-has-thrived-in-it>

In the glare of the hotly contested 2018 elections<https://www.propublica.org/electionland/>, things did not go ideally for ES&S, the nation’s largest manufacturer of voting technology.
In Georgia, where the race for governor had drawn national interest amid concerns about election integrity, ES&S-owned technology was in use when more than<https://www.politico.com/story/2019/02/12/georgia-voting-states-elections-1162134> 150,000 voters inexplicably did not cast a vote for lieutenant governor. In part because the aged ES&S-managed machines did not produce paper backups, it wasn’t clear whether mechanical or human errors were to blame. Litigation surrounding the vote endures to this day.

In Indiana, ES&S’ systems were plagued by mishaps at the local level. In Johnson County<https://fox59.com/2019/01/09/fox59-exclusive-scathing-report-finds-johnson-county-violated-state-election-laws/>, for instance, the company’s brand-new machines faltered in ways that made it difficult to know whether some people had voted more than once<https://fox59.com/2019/02/11/johnson-county-to-change-election-equipment-before-may-primary/>.

“ES&S misjudged the need for appropriate resources to serve Johnson County on Election Day 2018,” a report issued by state election officials later concluded. Johnson County subsequently terminated its contract with ES&S and, this September, paid more than $1.5 million<http://www.dailyjournal.net/2019/09/24/county_to_buy_all_new_election_equipment/> to purchase an entirely new set of equipment.

The uneven performance by ES&S in 2018, however, did little to dent its position as one of the most popular and powerful voting technology companies in the U.S. Any number of prior controversies hadn’t either.
The vote in 2006 in Sarasota, Florida, was just one. There, ES&S machines lost around 18,000 votes<https://www.pcworld.com/article/127838/article.html>; it is still unclear why. The loss was far more than the margin of victory, and a lawsuit followed that ultimately resolved little. The company said in a statement that a variety of testing<https://www.govinfo.gov/content/pkg/GAOREPORTS-GAO-08-425T/html/GAOREPORTS-GAO-08-425T.htm> done on its machines supports its claim that the devices were not at fault, but the county wound up canceling<https://www.heraldtribune.com/article/LK/20090924/News/605227288/SH/> its dealings with the firm shortly afterward.

Despite such stumbles, ES&S — based in Omaha, Nebraska, and employing roughly 500 people — controls around 50% of the country’s election system market, the company says, meaning that some 70 million Americans vote using the company’s equipment.

The question of the nation’s election integrity has rarely been more urgent. President Donald Trump has repeatedly made baseless claims of voter fraud. The special counsel investigation of Russian meddling in the 2016 vote produced indictments of more than a dozen foreign nationals. How and what federal authorities are doing to prevent future scandals — incidents of outside interference or basic breakdowns in accurately counting votes — has become yet one more partisan issue in a bitterly divided Congress.

A ProPublica examination of ES&S shows it has fought hard to keep its dominance in the face of repeated controversies. The company has a reputation among both its competitors and election officials for routinely going to court when it fails to win contracts or has them taken away, suing voting jurisdictions, rivals, advocates for greater election security and others.
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Posted in election administration<https://electionlawblog.org/?cat=18>


--
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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