[EL] ELB News and Commentary 9/13/19

[Rick Hasen]

Second Circuit, on 2-1 Vote (and Disagreeing with 4th Circuit), Finds Standing in Emoluments Suit Against Trump and Remands Case<https://electionlawblog.org/?p=107318>
Posted on September 13, 2019 7:30 am<https://electionlawblog.org/?p=107318> by Rick Hasen<https://electionlawblog.org/?author=3>

As the majority put it<https://assets.documentcloud.org/documents/6405431/9-13-19-CREW-2nd-Circuit.pdf>, “But while the existence of a political motivation for a lawsuit does not supply standing, nor does it defeat standing. “
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Posted in conflict of interest laws<https://electionlawblog.org/?cat=20>


Kentucky: “Jury convicts dad of Alison Lundergan Grimes for giving illegally to Senate campaign”<https://electionlawblog.org/?p=107316>
Posted on September 13, 2019 7:26 am<https://electionlawblog.org/?p=107316> by Rick Hasen<https://electionlawblog.org/?author=3>

The Lexington Herald-Leader reports.<https://www.kentucky.com/news/politics-government/article235005227.html>
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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>


“New Clues Show How Russia’s Grid Hackers Aimed for Physical Destruction”<https://electionlawblog.org/?p=107314>
Posted on September 13, 2019 7:25 am<https://electionlawblog.org/?p=107314> by Rick Hasen<https://electionlawblog.org/?author=3>

Wired:<https://www.wired.com/story/russia-ukraine-cyberattack-power-grid-blackout-destruction/>

For nearly three years, the December 2016 cyberattack on the Ukrainian power grid<https://www.wired.com/story/russian-hackers-attack-ukraine/> has presented a menacing puzzle. Two days before Christmas that year, Russian hackers planted a unique specimen of malware in the network of Ukraine’s national grid operator, Ukrenergo. Just before midnight, they used it to open every circuit breaker in a transmission station north of Kyiv<https://www.wired.com/story/crash-override-malware/>. The result was one of the most dramatic attacks in Russia’s years-long cyberwar against its western neighbor<https://www.amazon.com/Sandworm-Cyberwar-Kremlins-Dangerous-Hackers/dp/0385544405>, an unprecedented, automated blackout across a broad swath of Ukraine’s capital.

But an hour later, Ukrenergo’s operators were able to simply switch the power back on again. Which raised the question: Why would Russia’s hackers build a sophisticated cyberweapon and plant it in the heart of a nation’s power grid only to trigger a one-hour blackout?

A new theory offers a potential answer. Researchers at the industrial-control system cybersecurity firm Dragos have reconstructed a timeline of the 2016 blackout attack<https://dragos.com/wp-content/uploads/CRASHOVERRIDE.pdf> based on a reexamination of the malware’s code and network logs pulled from Ukrenergo’s systems. They say that hackers intended not merely to cause a short-lived disruption of the Ukrainian grid but to inflict lasting damage that could have led to power outages for weeks or even months. That distinction would make the blackout malware one of only three pieces of code ever spotted in the wild aimed at not just disrupting physical equipment but destroying it, as Stuxnet did in Iran in 2009 and 2010<https://www.wired.com/2014/11/countdown-to-zero-day-stuxnet/> and the malware Triton was designed to do in a Saudi Arabian oil refinery in 2017<https://www.wired.com/story/triton-malware-targets-industrial-safety-systems-in-the-middle-east/>.

In an insidious twist in the Ukrenergo case, Russia’s hackers apparently intended to trigger that destruction not at the time of the blackout itself but when grid operators turned the power back on, using the utility’s own recovery efforts against them.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Report on Election Security Gains Attention, and a Sharp Rebuke”<https://electionlawblog.org/?p=107312>
Posted on September 13, 2019 7:23 am<https://electionlawblog.org/?p=107312> by Rick Hasen<https://electionlawblog.org/?author=3>

ProPublica<https://www.propublica.org/article/report-on-election-security-gains-attention-and-a-sharp-rebuke?utm_content=buffer1b54e&utm_medium=social&utm_source=twitter&utm_campaign=buffer#167715>:

States that received the reports found them riddled with errors and unhelpful for assessing actual election security. The work done by NormShield — called “Rapid Cyber Risk Scorecards” — had tested online government material not associated with elections. In Idaho, for example, the company examined the security of the Department of Environmental Quality, but not the state’s online voter registration system. In Oklahoma, of 200 IP addresses scanned, none were related to elections. In Vermont, the scan had been performed on a defunct domain.

“You would think a firm that claims expertise in cybersecurity could do a simple Google search to find the correct address of a state website,” Iowa Secretary of State Paul Pate said in a statement.

Multiple states confronted NormShield about the reports. Federal government agencies privately called it irresponsible, and nonprofit groups panned NormShield’s failure to appropriately notify the states of vulnerabilities before threatening to report them publicly.

It might all have faded away as an unremarkable, if annoying episode had it not been for the fact that NormShield on Tuesday published its work. While the published report did not name any specific states, it said that more than half of the 50 states whose systems it examined had received “a grade C or below.”

The report garnered considerable attention, written up by The Washington Post<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2019/09/10/the-cybersecurity-202-how-state-election-officials-are-contributing-to-weak-security-in-2020/5d76a5a9602ff171a5d73505/>, Politico<https://www.politico.com/newsletters/morning-cybersecurity/2019/09/10/states-still-not-up-to-snuff-on-election-security-researchers-warn-735904> and Axios<https://www.axios.com/elections-officials-flub-some-basic-security-tasks-f7fb2fb4-0292-4ef1-a2d2-ad9799f07784.html>.

In interviews with ProPublica, election officials and experts in election security said NormShield’s behavior amounted to another kind of election security threat: companies looking to profit from a country on edge about the integrity of its national and local elections.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Trump’s Judicial Picks Are Gutting Campaign Finance Law”<https://electionlawblog.org/?p=107310>
Posted on September 13, 2019 7:20 am<https://electionlawblog.org/?p=107310> by Rick Hasen<https://electionlawblog.org/?author=3>

Ciara Torres-Spelliscy oped<https://www.law360.com/articles/1195479/trump-s-judicial-picks-are-gutting-campaign-finance-law>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Joan Biskupic Scoop: Chief Justice Roberts Was For Inclusion of the Citizenship Question on the Census Before He Was Against It<https://electionlawblog.org/?p=107308>
Posted on September 12, 2019 10:15 am<https://electionlawblog.org/?p=107308> by Rick Hasen<https://electionlawblog.org/?author=3>

Joan confirms <https://www.cnn.com/2019/09/12/politics/john-roberts-census-citizenship-supreme-court/index.html?utm_medium=social&utm_content=2019-09-12T17%3A03%3A20&utm_term=image&utm_source=twCNNp> what many of us suspected from reading the opinions in Dep’t of Commerce v. NY:

Chief Justice John Roberts <https://www.cnn.com/2013/03/25/us/john-g-roberts-fast-facts/index.html> cast the deciding vote against President Donald Trump’s attempt to add a citizenship question to the 2020 census, but only after changing his position behind the scenes, sources familiar with the private Supreme Court deliberations tell CNN.

The case was fraught with political consequences. Democrats and civil rights advocates claimed the query would discourage responses to the decennial questionnaire from new immigrants and minorities and affect the balance of power nationwide.

Roberts’ action recalled his dramatic switch in the 2012 case <https://www.cnn.com/2019/03/21/politics/john-roberts-obamacare-the-chief/index.html> that saved President Barack Obama’s Affordable Care Act. Once again, the chief, an appointee of President George W. Bush and a reliable conservative, had sided with the liberals as a dispute of immense national significance went down to the wire….

For the most part, Roberts’ opinion in the census case<https://www.cnn.com/2019/06/27/politics/read-supreme-court-ruling-2020-census-citizenship-case/index.html> laid out why Commerce Secretary Wilbur Ross had significant latitude to add a new question. He was joined by his four conservative brethren on that point. But then the chief justice swerved, and joined by the four liberal justices, said Ross’ justification for the citizenship question, tied to enforcing the Voting Rights Act, was contrived.

After the justices heard arguments in late April, Roberts was ready to rule for Ross and the administration. But sometime in the weeks that followed, sources said, Roberts began to waver. He began to believe that Ross’ rationale for the citizenship question had been invented, and that, despite the deference he would normally give an executive branch official, Ross’ claim had to matter in the court’s final judgment, which Roberts announced on June 27<https://www.cnn.com/2019/06/27/politics/census-supreme-court/index.html>.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>


“FairVote/YouGov ‘Ranked Choice’ Poll Throws Floodlight on Better Ways to Gauge Democratic Voter Preferences in Crowded Presidential Field”<https://electionlawblog.org/?p=107306>
Posted on September 12, 2019 7:58 am<https://electionlawblog.org/?p=107306> by Rick Hasen<https://electionlawblog.org/?author=3>

Release:

A first-of-its-kind FairVote/YouGov poll of Democratic voters<http://icm-tracking.meltwater.com/link.php?DynEngagement=true&H=qJ9juQrYQnz1cqUgIm8psgUQ75z%2Bv%2FUt%2BmzLgDhho6nnEEJMrQdYlzj%2F3H%2BNwqqu2r9sP8sz3ZBz8VLSJvM8lSTkdqZ82RLceowHB0Cm03fZKNWgRjbVFA%3D%3D&G=0&R=https%3A%2F%2Fwww.vox.com%2F2019%2F9%2F12%2F20860985%2Fpoll-democratic-primary-ranked-choice-warren-biden&I=20190912114830.000000966145%40mail6-42-usnbn1&X=MHwxMDQ2NzU4OjVkN2EzMDhiNjA3ZjFmYTEyOTQ2NDA2ZDs%3D&S=LvYP0Q5W9m1I8GAPNlbSHz6QXChvD4Sr372qa0Wbpfs> in the 2020 presidential race showcases the benefits of surveying through a ranked choice lens — allowing voters to rank issues and candidates in order of preference and giving greater insight into the state of a crowded Democratic 2020 race and candidates’ potential paths to victory than traditional “single choice” analyses.

FairVote’s presentation of findings<http://icm-tracking.meltwater.com/link.php?DynEngagement=true&H=qJ9juQrYQnz1cqUgIm8psgUQ75z%2Bv%2FUt%2BmzLgDhho6nnEEJMrQdYlzj%2F3H%2BNwqqu2r9sP8sz3ZBz8VLSJvM8lSTkdqZ82RLceowHB0Cm03fZKNWgRjbVFA%3D%3D&G=0&R=https%3A%2F%2Fwww.fairvote.org%2Fdemocratic_primary_2020_poll&I=20190912114830.000000966145%40mail6-42-usnbn1&X=MHwxMDQ2NzU4OjVkN2EzMDhiNjA3ZjFmYTEyOTQ2NDA2ZDs%3D&S=fN_TizgndU7uqHggjDbk1mqS-oXONwXc_dMOQZNwb64> includes a series of online interactive tools<http://icm-tracking.meltwater.com/link.php?DynEngagement=true&H=qJ9juQrYQnz1cqUgIm8psgUQ75z%2Bv%2FUt%2BmzLgDhho6nnEEJMrQdYlzj%2F3H%2BNwqqu2r9sP8sz3ZBz8VLSJvM8lSTkdqZ82RLceowHB0Cm03fZKNWgRjbVFA%3D%3D&G=0&R=https%3A%2F%2Fwww.fairvote.org%2Fdemocratic_primary_2020_poll%23spread_of_democratic_frontrunner_rankings&I=20190912114830.000000966145%40mail6-42-usnbn1&X=MHwxMDQ2NzU4OjVkN2EzMDhiNjA3ZjFmYTEyOTQ2NDA2ZDs%3D&S=NerOTxTdBlasWcA1lb8Me12BDlui988xmhAwLuts9uk> and an initial report on featured insights<http://icm-tracking.meltwater.com/link.php?DynEngagement=true&H=qJ9juQrYQnz1cqUgIm8psgUQ75z%2Bv%2FUt%2BmzLgDhho6nnEEJMrQdYlzj%2F3H%2BNwqqu2r9sP8sz3ZBz8VLSJvM8lSTkdqZ82RLceowHB0Cm03fZKNWgRjbVFA%3D%3D&G=0&R=https%3A%2F%2Ffairvote.app.box.com%2Fv%2F2020-FV-YouGov-Analysis&I=20190912114830.000000966145%40mail6-42-usnbn1&X=MHwxMDQ2NzU4OjVkN2EzMDhiNjA3ZjFmYTEyOTQ2NDA2ZDs%3D&S=SMXgkEqqo1z4PeUoVWIhbtXZ8O3Nw2ye0vU3sjP1uWs> and toplines from YouGov<http://icm-tracking.meltwater.com/link.php?DynEngagement=true&H=qJ9juQrYQnz1cqUgIm8psgUQ75z%2Bv%2FUt%2BmzLgDhho6nnEEJMrQdYlzj%2F3H%2BNwqqu2r9sP8sz3ZBz8VLSJvM8lSTkdqZ82RLceowHB0Cm03fZKNWgRjbVFA%3D%3D&G=0&R=https%3A%2F%2Ffairvote.app.box.com%2Fv%2F2020-FV-YouGov-Toplines&I=20190912114830.000000966145%40mail6-42-usnbn1&X=MHwxMDQ2NzU4OjVkN2EzMDhiNjA3ZjFmYTEyOTQ2NDA2ZDs%3D&S=5jRZ0I59PQhB-9osXzgKoNQPv5HplNq0-UgmrilFLW8>. On its website, FairVote allows users to filter voter preference data by demographic groups (see links below), simulate a ranked choice voting tally and head-to-head contests between different candidates, and see how ranked choice voting (RCV) ballots will work in tandem with Democratic Party rules involving delegate allocation in several states next year.

“In contrast to how most single choice opinion polling is used, ranked-choice surveys allow a greater understanding of how voters are considering a field of options, what depth of support candidates have in rankings and how one candidate’s fall over the course of the campaign could affect others’ rise. While the state of the race may change coming out of tonight’s debate, the current findings suggest Sen. Elizabeth Warren as the current frontrunner in the race,” said FairVote president and CEO Rob Richie. “This survey gives a snapshot of a moment in time, showing where the democratic electorate is landing on the candidates and the issues, what could happen if the field narrows, and which candidates are best-positioned to benefit.”
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Posted in alternative voting systems<https://electionlawblog.org/?cat=63>


“PACs that raise small-dollar donations — and spend mostly on themselves — are proliferating”<https://electionlawblog.org/?p=107304>
Posted on September 12, 2019 7:56 am<https://electionlawblog.org/?p=107304> by Rick Hasen<https://electionlawblog.org/?author=3>

Troubling trend<https://publicintegrity.org/federal-politics/charitable-contributions/> detailed by CPI.
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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>


Breaking: Just Days After Rejecting Tennessee’s Motion to Dismiss, Federal Court Issues Preliminary Injunction Against State’s Strict Rules for Conducting Voter Registration Drives<https://electionlawblog.org/?p=107302>
Posted on September 12, 2019 7:44 am<https://electionlawblog.org/?p=107302> by Rick Hasen<https://electionlawblog.org/?author=3>

This is a big deal<https://documentcloud.adobe.com/link/track?uri=urn%3Aaaid%3Ascds%3AUS%3A0f655738-4ed6-4030-a6f0-86bb02fa549f>, and no surprise given the earlier ruling<https://www.courtlistener.com/recap/gov.uscourts.tnmd.79006/gov.uscourts.tnmd.79006.57.0_1.pdf> (except that it came very quickly after the rejection of the motion to dismiss).

The real question is whether the Sixth Circuit, which is becoming increasingly conservative, will reverse.
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Posted in election administration<https://electionlawblog.org/?cat=18>, The Voting Wars<https://electionlawblog.org/?cat=60>


--
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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