[EL] ELB News and Commentary 4/22/20

Tue Apr 21 20:21:39 PDT 2020

“U.S. Adversaries Are Accelerating, Coordinating Coronavirus Disinformation, Report Says”<https://electionlawblog.org/?p=110912>
Posted on April 21, 2020 8:19 pm<https://electionlawblog.org/?p=110912> by Rick Hasen<https://electionlawblog.org/?author=3>

WSJ<https://www.wsj.com/articles/u-s-adversaries-are-accelerating-coordinating-coronavirus-disinformation-report-says-11587514724?mod=hp_listb_pos3>:

The State Department has assessed that Russia, China and Iran are mounting increasingly intense and coordinated disinformation campaigns against the U.S. relating to the outbreak of the new coronavirus<https://www.wsj.com/livecoverage/latest-updates/coronavirus?mod=article_inline>, according to an internal report.

All three countries are using state-controlled media, social media and government agencies and officials to disseminate information to domestic audiences and global audiences alike that denigrates the U.S. and spreads false accounts, the State Department report says.

The messages then are picked up and amplified by each, repeating the other’s claims, creating an echo across traditional and social media. The pattern allows officials and official sources to give credibility to information spread by unofficial sources, the report said.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

New York: “Filing error may cost Democrats long-held state Assembly seat”<https://electionlawblog.org/?p=110910>
Posted on April 21, 2020 8:10 pm<https://electionlawblog.org/?p=110910> by Rick Hasen<https://electionlawblog.org/?author=3>

NY Post reports<https://nypost.com/2020/04/21/filing-error-may-cost-democrats-long-held-state-assembly-seat/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Elections in a Time of Contagion”: An Australian Perspective<https://electionlawblog.org/?p=110907>
Posted on April 21, 2020 8:03 pm<https://electionlawblog.org/?p=110907> by Rick Hasen<https://electionlawblog.org/?author=3>

Video<https://www.youtube.com/watch?v=uOwDgKHfyZU> with the always insightful Graeme Orr:

Like all else, politics is upturned by the current pandemic. How will electoral politics and particularly the conduct of elections be affected? This talk canvasses what flexibility there is to delay elections and options to adapt their conduct. And how will such options affect ‘free and fair elections’ – their integrity, democratic value and ritual experience? The focus is on Australia, but emerging international experience is also considered.

Graeme Orr is Professor of Law at the University of Queensland, specialising in the law of politics. His books include The Law of Politics: Elections, Parties and Money in Australia (2019, 2nd ed), Ritual and Rhythm in Electoral Systems (2015) and, with Ron Levy, The Law of Deliberative Democracy (2016). Graeme is a Fellow of the Australian Academy of Law, a former international editor of the Election Law Journal and is a current member of the NSW iVote expert advisory panel.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Faithless or Faithful Electors? An Analogy to Disobedient but Conscientious Jurors”<https://electionlawblog.org/?p=110905>
Posted on April 21, 2020 4:06 pm<https://electionlawblog.org/?p=110905> by Rick Hasen<https://electionlawblog.org/?author=3>

Jeffrey Abramson has written this article<https://law.emory.edu/elj/elj-online/volume-69/essays/faithless-faithful-electors-analogy-jurors.html> for the Emory Law Journal Online.
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Posted in electoral college<https://electionlawblog.org/?cat=44>

“The Quiet Hand of Conservative Groups in the Anti-Lockdown Protests”<https://electionlawblog.org/?p=110903>
Posted on April 21, 2020 2:27 pm<https://electionlawblog.org/?p=110903> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/04/21/us/politics/coronavirus-protests-trump.html?smid=tw-share>

An informal coalition of influential conservative leaders and groups, some with close connections to the White House, has been quietly working to nurture protests and apply political and legal pressure to overturn state and local orders intended to stop the spread of the coronavirus.

Groups in the loose coalition have tapped their networks to drive up turnout at recent rallies<https://www.nytimes.com/2020/04/18/us/texas-protests-stay-at-home.html> in state capitals, dispatched their lawyers to file lawsuits, and paid for polling and research to undercut the arguments behind restrictions that have closed businesses and limited the movement of most Americans<https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home-order.html>.

Among those fighting the orders are populist groups that played pivotal roles in the beginning of Tea Party protests starting more than a decade ago, such as FreedomWorks and Tea Party Patriots. Also involved are a law firm led partly by former Trump White House officials, a network of state-based conservative policy groups, and an ad hoc coalition of conservative leaders known as Save Our Country that has advised the White House on strategies for a tiered reopening of the economy.

The initiatives, powered by a mix of grass-roots activism and well-funded groups with ties to the White House, are emerging as President Trump is pushing governors to open their states, with one eye on his own re-election prospects….

Most of FreedomWorks’s 40 employees are working remotely on the effort, helping to connect local protesters and set up websites for them. The group is considering paid digital advertising to further increase turnout, and has been conducting weekly tracking polls in swing suburban districts that it says show support for reopening parts of country. It is sharing the data with advisers on the president’s economic task force and other conservative allies on Capitol Hill….

Support for the protests features more direct ties to the White House than simply support for Mr. Trump. The administration recently formed an advisory group for reopening the economy that included Stephen Moore, the conservative economics commentator. Mr. Moore had been coordinating with FreedomWorks, the Tea Party Patriots and the American Legislative Exchange Council in a coalition called “Save Our Country<https://www.washingtonpost.com/business/2020/04/13/trump-reopen-economy-conservative-groups-coronavirus/>,” which was formed to push for a quicker easing of restrictions.

At the same time, Mr. Moore was communicating with a group of local activists in Wisconsin involved in organizing a protest at the State Capitol set for Friday. On a conservative YouTube program<https://www.youtube.com/watch?v=2h7czFYx6-s&feature=youtu.be&t=856> that went online the day Mr. Trump named him to the task force, Mr. Moore said he had “one big donor in Wisconsin” who had pledged financial support for the protesters, telling him, “‘Steve, I promise, I will pay the bail and legal fees of anyone who gets arrested.’”

In an interview with The New York Times, Mr. Moore declined to identify the donor, but said, “I do think you’re going to see these start to erupt.”

He said he would probably turn down an invitation to speak at the protest in Wisconsin, because “it’s important that no one be under the impression that it’s sponsored or directed by national groups in Washington.”

A legal offensive against the restrictions is also being waged by groups and individuals supportive of Mr. Trump.

Officials from groups including FreedomWorks, Tea Party Patriots and the anti-abortion-rights group Susan B. Anthony List sent a letter<https://www.documentcloud.org/documents/6842227-Trump-Allies-Call-On-DOJ-To-Block-State.html> to Attorney General William P. Barr on Friday urging the Justice Department to consider intervening to block state and local coronavirus restrictions that the officials said were unconstitutional infringements on civil liberties. Mr. Barr suggested on Tuesday<https://www.hughhewitt.com/attorney-general-william-barr-on-the-crisis/> he was concerned about the constitutional implications.
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Posted in social media and social protests<https://electionlawblog.org/?cat=58>

“Michigan Secretary of State Revises Signature Match Process As a Result of Federal Lawsuit”<https://electionlawblog.org/?p=110901>
Posted on April 21, 2020 2:22 pm<https://electionlawblog.org/?p=110901> by Rick Hasen<https://electionlawblog.org/?author=3>

Marc Elias press release<https://thedemocracydocket.perkinscoieblogs.com/wp-content/uploads/sites/41/2020/04/PR_20200421_MI-SOS-Revises-Signature-Match-Process-As-a-Result-of-Federal-Lawsuit.pdf>.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, election administration<https://electionlawblog.org/?cat=18>

“Call for Papers: Elections During the COVID Pandemic”<https://electionlawblog.org/?p=110899>
Posted on April 21, 2020 2:14 pm<https://electionlawblog.org/?p=110899> by Rick Hasen<https://electionlawblog.org/?author=3>

ELJ:<https://home.liebertpub.com/cfp/elections-during-the-covid-pandemic/260/>

Manuscript Submission Deadline: June 15, 2020.

Before submission, please refer to the Election Law Journal author submission guidelines<https://home.liebertpub.com/publications/election-law-journal/101/for-authors>.

The recent primary elections in Wisconsin exposed the problems of trying to hold an election during a pandemic and demonstrated the difficulties in having an unusual volume of ballots cast by mail when the voting infrastructure was not prepared. It is quite possible that most states will be facing a similar situation in November, but with substantially higher turnout than experienced in Wisconsin. The Election Law Journal would like to publish research articles that could help form the debate on how best to conduct elections during a pandemic.

All manuscripts should be submitted online by June 15, 2020. All submissions will be subject to rigorous peer review, but our goal is an expedited review process that will get as many articles in print before the election as possible (and to make them available online as soon as final versions are ready for publication).  We encourage submissions of original research articles and meta-analyses (see below).

Suggested topics include, among others:

•  What are the advantages and disadvantages of moving to an all-vote-by-mail system in terms of election administration?  What is known about the rates of spoiled ballots and the threats of voter fraud? What are the best ways to address these concerns?

•  Will the pandemic force a delay in the U.S. Census, perhaps pushing reapportionment and redistricting out of the normal cycle? Are there technical solutions and legal issues concerning this possibility that are not receiving enough attention?

• What legal issues are raised by the possibility that 20 million students may be attending colleges and universities remotely in the fall? Could they claim residence in their college town? Is this something that is amenable to national legislation? (Set aside the practical political reality that national legislation on this topic would never happen, so this is posed as a legal question).

•  Finally, the journal would be interested in meta-analyses of voting by mail.  What do we know about what would happen if this was implemented on a broader scale?  What are the partisan implications?  What are the relative rates of spoiled ballot and the potential to remedy the errors under different voting methods?  What are the relative levels of and potential for voter fraud with the various methods?

Visit Election Law Journal to learn more, read past issues, and view author submission guidelines<https://home.liebertpub.com/publications/election-law-journal/101/for-authors>.

Queries to the editor to propose a topic prior to submission are encouraged. Please contact Editor-in-Chief, David Canon<mailto:dtcanon at wisc.edu> with any questions or for any further details.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Constitution by Convention”<https://electionlawblog.org/?p=110897>
Posted on April 21, 2020 12:59 pm<https://electionlawblog.org/?p=110897> by Rick Hasen<https://electionlawblog.org/?author=3>

Sam Issacharoff and Trevor Morrison have posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3574803&dgcid=ejournal_htmlemail_u.s.:constitutional:law:interpretation:judicial:review:ejournal_abstractlink> on SSRN (forthcoming, California Law Review). Here is the abstract:

Constitutionalism has never been exclusively reduced to the written text either in terms of its commands or its interpretation.  In the United States, lived experiences and institutional arrangements “can inform our determination of what the law is,” as the Supreme Court recently noted. Nevertheless, the precise relation between written text and settled institutional practice remains a subject of disagreement and even confusion. The scholarly literature has only recently begun to treat these issues with the seriousness they deserve.

We bring to this debate a sensibility that beneath the constitutional text there lies a world of institutional settlement—or constitution by convention—in which all institutional actors allow time-tested resolutions of a range of questions to play a significant and sometimes dispositive role in determining the content of the law. Much of the time, this process of institutional accommodation and settlement takes place beyond the reach and view of the judiciary. A constitutional system governed by convention is, first and foremost, a system generated by the actors responsible for the day-to-day running of the government itself. The growing literature on law and legal interpretation outside the courts recognizes this important fact. Occasionally, however, the courts are called upon to adjudicate cases that turn on whether and to what extent certain asserted institutional arrangements and conventions exist, and whether and to what extent those arrangements and conventions should be accorded legal status to bind other actors. In those cases, courts very often do grant legal weight to institutional accommodations embedded in repeated historical practice.

Not every practical resolution of how to get things done carries legal or other normative weight and we do not mean to suggest that every traditional way of doing things should or does take on legal status. But in a constitutional order responsible for governing an immense and complicated polity, the need to find workable solutions to everyday problems of government is bound to find its way into the law over time.

We make no effort to hide the source of our concern. In the United States, and across much of the democratic world, established structures of governance are perceived to be failing and are being systematically challenged. As this constitutional saga unfolds, the question of settled practice takes a central role in assessing which transgressions of governing norms are permissible, and which are not. When the transgressing authority takes the form of a largely unchecked executive, whether in the U.S. or abroad, a central responsibility falls to the courts to reinforce what are often imprecise constitutional boundaries. Here our use of the concept of convention as a constraint pushes beyond traditional understandings. Older accounts have treated conventions as institutional settlements meaningful to the political branches but not enforceable in the courts. Ours by contrast introduces a role for courts both in identifying conventions that have proven themselves to be practically useful and in integrating that experiential wisdom into formal, judicially elaborated constitutional doctrine.

Our undertaking proceeds in two basic parts. In Part I, we lay out some of the elements of our understanding of what is entailed in looking to historical practice and institutional settlement to answer constitutional questions. This is the domain of Justice Frankfurter’s “historical gloss,” and practices that remain within the scope of that gloss should in our view be treated as presumptively permissible. Departures from settled institutional practices, on the other hand, merit no such deference and require fresh examination and justification. To concretize our conceptual approach, we proceed to demonstrate the pervasiveness of practice-based conventions in a wide range of public law contexts.

In Part II, we take up a set of case studies that illustrate some of the challenges courts can face when trying to sustain settled institutional arrangements in the face of shifting political tides. Specifically, we discuss President Obama’s recess appointments, President Trump’s travel ban, and Congress’s subpoenas of President Trump’s financial records.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Senate panel backs assessment that Russia interfered in 2016”<https://electionlawblog.org/?p=110895>
Posted on April 21, 2020 11:23 am<https://electionlawblog.org/?p=110895> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://www.detroitnews.com/story/news/politics/2020/04/21/senate-panel-backs-assessment-russia-interfered/111579472/>:

A bipartisan Senate report<https://www.intelligence.senate.gov/sites/default/files/documents/Report_Volume4.pdf> released Tuesday confirms the U.S. intelligence community’s conclusions that Russia interfered in the 2016 presidential election to sow chaos. Senators warned that it could happen again this presidential election year.

The heavily redacted report from the Senate Intelligence Committee is part of the panel’s more than three-year investigation into the Russian interference. The intelligence agencies concluded in January 2017 that Russians had engaged in cyber-espionage and distributed messages through Russian-controlled propaganda outlets to undermine public faith in the democratic process, hurt Democratic candidate Hillary Clinton and help Donald Trump.

President Trump has repeatedly questioned the assessment, which was also confirmed by former special counsel Robert Mueller in his report last year. Mueller concluded that Russian interference was “sweeping and systematic,” but he did not find a criminal conspiracy between Russia and the Trump campaign.

Senate Intelligence Committee Chairman Richard Burr, R-N.C., said in a statement that his panel “found no reason to dispute” the intelligence community’s conclusions, saying they reflected strong tradecraft and analytical reasoning. He said the agencies’ conclusion that such election interference is “the new normal” has been borne out in the three years since it was published.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Alabama Secretary of State John Merrill Shows Great Disrespect to Voter Who Asks About How Voters Are Supposed to Make Copies of Their IDs to Vote by Mail in Pandemic<https://electionlawblog.org/?p=110893>
Posted on April 21, 2020 11:16 am<https://electionlawblog.org/?p=110893> by Rick Hasen<https://electionlawblog.org/?author=3>

Just wow:<https://twitter.com/Sifill_LDF/status/1252660780778037254>
[cid:image002.jpg at 01D6181A.76647640]<https://twitter.com/Sifill_LDF>
<https://twitter.com/Sifill_LDF>
Sherrilyn Ifill<https://twitter.com/Sifill_LDF>
✔@Sifill_LDF<https://twitter.com/Sifill_LDF>

<https://twitter.com/Sifill_LDF/status/1252660780778037254>

Why do we stay focused on voting in the South? Here’s the Alabama Secretary of State responding to a voter question about voting absentee for the July 17th primary runoff.
[View image on Twitter]<https://twitter.com/Sifill_LDF/status/1252660780778037254/photo/1>[View image on Twitter]<https://twitter.com/Sifill_LDF/status/1252660780778037254/photo/1>
<https://twitter.com/intent/like?tweet_id=1252660780778037254>
3,256<https://twitter.com/intent/like?tweet_id=1252660780778037254>
11:09 AM - Apr 21, 2020<https://twitter.com/Sifill_LDF/status/1252660780778037254>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
<https://twitter.com/Sifill_LDF/status/1252660780778037254>
1,473 people are talking about this<https://twitter.com/Sifill_LDF/status/1252660780778037254>

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

Must-read: “‘They should have done something’: Broad failures fueled Wisconsin’s absentee ballot crisis, investigation shows”<https://electionlawblog.org/?p=110890>
Posted on April 21, 2020 11:14 am<https://electionlawblog.org/?p=110890> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel<https://www.jsonline.com/story/news/2020/04/21/wisconsin-absentee-ballot-crisis-fueled-multiple-failures/5156825002/>:

An investigation by the Milwaukee Journal Sentinel, the PBS series FRONTLINE and Columbia Journalism Investigations into Wisconsin’s missing ballot crisis reveals a system leaking from all sides, buckling under the weight of a global pandemic and partisan bickering that kept the logistics of Election Day up in the air until less than a day before polls opened.

Inadequate computer systems, overwhelmed clerks and misleading ballot information hampered Wisconsin’s historic — and historically troubling — spring election.

With the prospect of COVID-19 persisting into the fall and beyond, and more elections on the calendar ahead of the presidential ballot in November — which could produce triple the number of votes by mail — eyes will remain fixed on Wisconsin…

Election officials have largely blamed the U.S. Postal Service for many of the missing absentee ballots that forced some citizens to don masks and stand in line on Election Day this month, increasing their risk of contracting the potentially fatal disease COVID-19.

But the investigation by the Journal Sentinel, FRONTLINE and Columbia, based on interviews with voters, election officials and political experts, as well as responses from more than 600 people to an online questionnaire, shows the problems went far beyond mailing issues.

People from nearly 100 Wisconsin cities and towns responded to the Journal Sentinel’s online request for readers to share their information if they did not receive their absentee ballots. Many said they tried requesting their absentee ballots multiple times.

Some people received too many ballots. Some received empty envelopes. Some gave up trying to navigate the state’s request system. Others got their ballots after Election Day.

Three people — two in Mequon and one in West Allis — said they were mailed duplicate ballots. In Wauwatosa, one couple said they received envelopes with no ballots.

In Milwaukee, three would-be voters said they received a form letter from Mayor Tom Barrett thanking them for requesting an absentee ballot — but not the ballot itself.

Officials sent ballots to college students to dorms they had been forced to vacate. For some Wisconsin residents wintering in New Mexico and Florida, ballots simply never showed up.

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

--
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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