[EL] ELB News and Commentary 8/7/20

[Rick Hasen]

“Georgia sued over long voting lines”<https://electionlawblog.org/?p=113876>
Posted on August 7, 2020 7:53 am<https://electionlawblog.org/?p=113876> by Rick Hasen<https://electionlawblog.org/?author=3>

AJC reports.<https://www.ajc.com/politics/georgia-sued-over-long-voting-lines/ZTG7VZO2BBCSDOH7GS6G7I5SVI/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The Latest U.S. Tool to Fight Election Meddling: Text Messages”<https://electionlawblog.org/?p=113874>
Posted on August 7, 2020 7:51 am<https://electionlawblog.org/?p=113874> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/08/06/us/politics/election-meddling-texts-russia-iran.html>

The United States government on Thursday became, for a brief moment, one of the biggest and perhaps most annoying telemarketers in Russia.

Seeking to publicize new rewards of up to $10 million for information about people trying to attack American voting systems, the State Department sent text messages to cellphones in Russia as well as Iran.

It was the 2020 version of a longstanding tradition of projecting American messages across the borders of adversaries. During the Cold War, Radio Free Europe broadcast pro-democracy programs across the Iron Curtain. In 2003, the United States dropped leaflets in Iraq warning against the use of (nonexistent) chemical weapons.

To the Russian government, and many Russians, the attempt looked ham-handed.

Maria Zakharova, a spokeswoman for the Russian government, ridiculed the message, which she said had appeared on many Russian cellphones. The program would yield nothing for the United States government, she predicted, and was more than just annoying to Russians.

“By calling on people to talk for money about interference in American elections, the American special services are unceremoniously interfering in our life,” she wrote on Facebook<https://www.facebook.com/maria.zakharova.167/posts/10223904997122502>. “What is this if not a real hybrid attack?”

One Twitter user in Russia posted: “For 10 million, I’ll say anything. Even that the Americans landed on the moon.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Mail-in ballot applications in Virginia tap into worries about fraud with faulty instructions”<https://electionlawblog.org/?p=113872>
Posted on August 7, 2020 7:48 am<https://electionlawblog.org/?p=113872> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/local/virginia-politics/virginia-absentee-ballot-mixup/2020/08/06/5c4029ee-d764-11ea-930e-d88518c57dcc_story.html>

A voter registration group with a history of sending error-ridden mailers has again sown confusion in Virginia, this time tapping into concerns about mail-in ballots sparkedby President Trump’s repeated allegations <https://www.washingtonpost.com/politics/republicans-race-to-promote-mail-voting-as-trumps-attacks-discourage-his-own-supporters-from-embracing-the-practice/2020/08/03/9dd1d988-d1d9-11ea-9038-af089b63ac21_story.html?itid=lk_inline_manual_2> — without evidence — of election fraud.

The Washington-based Center for Voter Information<https://www.centerforvoterinformation.org/>, a nonprofit geared toward increasing voter participation among underrepresented groups, mailed 2.25 million applications for absentee ballots to voters across the state, with a quarter of them containing a return envelope addressed to the wrong election office, the group said Thursday.

The computer error — which mixed up similarly named localities such as Fairfax County and the city of Fairfax — prompted a flurry of phone calls and emails to local election offices from voters convinced that they were the targets of a mail-in ballot fraud scheme….

The Center for Voter Information is actually nonpartisan, affiliated with the Voter Participation Center<https://www.voterparticipation.org/>, another nonprofit working to increase voter participation. If anything, both organizations appear to be more aligned with efforts to defeat the president than with his allies.

They were founded by Page Gardner, a Democratic strategist who has worked on several presidential and congressional election campaigns, according to the groups’ websites. The chief executive of the Center for Voter Information is Tom Lopach, another veteran Democratic strategist. The organization raised $19 million in 2018 to increase voter participation among unmarried women, people of color and millennials, according to the center’s most recent federal tax filing.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“Trump campaign ad manipulates three images to put Biden in a ‘basement’”<https://electionlawblog.org/?p=113870>
Posted on August 7, 2020 7:46 am<https://electionlawblog.org/?p=113870> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/2020/08/07/trump-campaign-ad-manipulates-three-images-put-biden-basement/>

The Pinocchio Test

Two of these photos fall under the category of “doctored” in the Fact Checker’s Guide to Manipulated Video<https://www.washingtonpost.com/graphics/2019/politics/fact-checker/manipulated-video-guide/?itid=lk_inline_manual_31>. In the most egregious case, one image literally takes Biden from a nature preserve and puts him in a darkened room, even deleting the microphone that would signal he was speaking to people.

We’ve taken a tough line on manipulated video, and we’re going to be equally tough on the use of these images because the framing of the ad — Biden alone in his basement — is largely based on them.

Before the coronavirus appeared, Biden ran a traditional campaign, holding town halls and meeting with people. The fact that the Trump campaign is forced to take images of events of Biden with people and twist them into him being alone demonstrates how little material they actually have for an attack ad.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, cheap speech<https://electionlawblog.org/?cat=130>, chicanery<https://electionlawblog.org/?cat=12>


“GOP asks Supreme Court to reinstate Arizona voting rules deemed racially biased”<https://electionlawblog.org/?p=113868>
Posted on August 7, 2020 7:38 am<https://electionlawblog.org/?p=113868> by Rick Hasen<https://electionlawblog.org/?author=3>

John Kruzel story<https://thehill.com/regulation/court-battles/509492-gop-asks-supreme-court-to-reinstate-arizona-voting-rules-deemed> from last week:

At issue in the lawsuit are a pair of Arizona voting restrictions that were struck down earlier this year by the San Francisco-based 9th Circuit Court of Appeals, which sparked the GOP petition to the Supreme Court.

In its January ruling siding with Democratic challengers, the appeals court went so far as to conclude that one of the two voting rules under review was intentionally designed to discriminate against people of color. The blistering decision<http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/27/18-15845.pdf> took Arizona to task for its historic practice of burdening the franchise of nonwhite voters.

“For over a century, Arizona has repeatedly targeted its American Indian, Hispanic, and African American citizens, limiting or eliminating their ability to vote and to participate in the political process,” the appeals court wrote.

Minority populations — whom the 9th Circuit Court found were disproportionately harmed in recent elections by the two Arizona policies — tend to vote Democratic.

While the Supreme Court will receive Arizona’s request for an appeal on Wednesday, its decision on whether to take up the case is likely to arrive this fall, perhaps just weeks before Election Day. Denying the appeal would give Democrats momentum heading into the final stretch of what’s expected to be a tight Senate and presidential race in the Grand Canyon State.

Yet so far this election cycle, the conservative-majority court has let voting restrictions stand in Alabama, Florida, Texas and Wisconsin. In a dissent earlier this month, Justice Sonia Sotomayor<https://thehill.com/people/sonia-sotomayor>, one of the court’s more liberal justices, accused the court of engaging in “a trend of condoning disfranchisement
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>


“Kanye West Indicates That His Spoiler Campaign is Indeed Designed to Hurt Biden”<https://electionlawblog.org/?p=113866>
Posted on August 7, 2020 7:30 am<https://electionlawblog.org/?p=113866> by Rick Hasen<https://electionlawblog.org/?author=3>

Forbes<https://www.forbes.com/sites/randalllane/2020/08/06/exclusive-kanye-west-indicates-that-his-spoiler-campaign-is-indeed-designed-to-hurt-biden/?utm_source=TWITTER&utm_medium=social&utm_content=3560023103&utm_campaign=sprinklrForbesMainTwitter#65a302536397>:

Amid various reports<https://www.cnn.com/2020/08/05/politics/kanye-west-ballot/index.html> that Republican and Trump-affiliated political operatives are trying to get Kanye West onto various state ballots for November’s presidential election, the billionaire rap superstar indicated, in an interview by text today, that he was in fact running to siphon votes from the presumptive Democratic nominee, Joe Biden.

Asked about that directly, West said that rather than running for president, he was “walking,” quickly adding that he was “walking . . . to win.”

When it was pointed out that he actually can’t win in 2020—that he won’t be on enough ballots to yield 270 electoral votes, and that a write-in campaign isn’t feasible—and thus was serving as a spoiler, West replied: “I’m not going to argue with you. Jesus is King.”

West rebuffed various attempts to clarify who was driving his ballot access or strategy and whether it’s being coordinated by or with Republican-affiliated officials. He does, however, appear to have a continuing relationship with the Trump White House. West says that he’s “designing a school within the next month” and that “I’m meeting with Betsy DeVos about the post-Covid curriculum.” (The Secretary of Education’s press office hadn’t responded to a request for comment by the time we published.)
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Posted in ballot access<https://electionlawblog.org/?cat=46>, campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>


“2020 election strategy: Hire all the lawyers”<https://electionlawblog.org/?p=113864>
Posted on August 7, 2020 7:28 am<https://electionlawblog.org/?p=113864> by Rick Hasen<https://electionlawblog.org/?author=3>

Axios reports.<https://www.axios.com/2020-election-lawsuits-de329dcc-97d1-46e9-9a9d-11197fd1e6a9.html%20-what's%20happening:%20Axios'?utm_source=newsletter&utm_medium=email&utm_campaign=newsletter_axiosam&stream=top>
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


“Bribery Charges in Ohio Illuminate the Dangers of Dark Money”<https://electionlawblog.org/?p=113862>
Posted on August 7, 2020 7:26 am<https://electionlawblog.org/?p=113862> by Rick Hasen<https://electionlawblog.org/?author=3>

Ciara Torres-Spelliscy for the Brennan Center.<https://www.brennancenter.org/our-work/analysis-opinion/bribery-charges-ohio-illuminate-dangers-dark-money>
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


Sen. Rubio Rightly Moves to Change Key Dates for the Electoral College Process<https://electionlawblog.org/?p=113857>
Posted on August 7, 2020 6:28 am<https://electionlawblog.org/?p=113857> by Richard Pildes<https://electionlawblog.org/?author=7>

Good news:  Senator Marco Rubio (R-FL) has introduced a bill<https://urldefense.com/v3/__https:/www.rubio.senate.gov/public/_cache/files/7c86cdcc-19c2-4abd-9164-bacc5e66a499/27CC6B97AB3A0618568E38775DD4B657.mcg20709.pdf__;!!KGKeukY!i2KVjFH2wDnoH0GmFhArdE_zaEXbOCbu3VFatk_A1X58dlHiCEAolAttb3IUqBcFuw$> to extend the federal safe harbor period for states to determine electors from December 8, 2020 to January 1, 2021 for this year’s presidential election. He explains his position in this Medium post titled, “Americans Should Expect Election Chaos<https://urldefense.com/v3/__https:/medium.com/@SenatorMarcoRubio/americans-should-expect-election-chaos-7fa8a9ac5aa1__;!!KGKeukY!i2KVjFH2wDnoH0GmFhArdE_zaEXbOCbu3VFatk_A1X58dlHiCEAolAttb3Ly5KFxog$>.”

Back in May, I called<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3613163> for pushing these dates back in the federal statute that governs presidential elections, when I identified several dates in the election calendar that should be changed for this fall.  Here is some of what I said then about the need for Congress to amend this law:

The last stages in the presidential election process are the casting of votes by the electors and the counting of those votes in Congress. …The framework statute governing the meeting of the Electoral College and the counting of the electoral votes is the Electoral Count Act, passed in 1887. The Act provides that Congress must count the electoral votes on January 6th, 2021. That date should not be changed; January 6th is the first date the newly-elected Congress meets and the President must, according to the Constitution, be inaugurated on Jan. 20th. But the two other key dates in Act, which might have made sense in the 19th century, can easily be moved back today; there is no contemporary policy reason these dates need to be fixed where they currently are. Pushing them back would not only provide breathing room for states to complete the vote count properly under the exceptional burdens this fall, but also for potential legal challenges.

The first is the date the electoral college formally votes. By law, that date is currently Dec. 14th. But there is then a gap of more than three weeks until Congress receives and counts those votes on Jan. 6th. . . . But there is no need for [that gap now]. Congress could easily push this date back several weeks. The electors could vote on Jan. 3rd, the same day the new Congress convenes (the Act currently requires the certifications of election to be transmitted by registered mail, but that could be changed to permit those votes to be transmitted electronically). … Moving this date back is key to relieving the vice-like pressure states will potentially experience in properly processing and counting the anticipated flood of absentee ballots.

[The second key date] is the so-called safe-harbor date, which provides that, if states certify the winner of the election by this date (technically, if they appoint a slate of electors) then Congress will be bound by that determination. This means Congress will not challenge the validity of those electors if they have been appointed by Dec. 8th. As the country learned in Bush v. Gore, this date puts states under tremendous pressure to complete their processes by then. But this date, too, can easily be moved back without compromising any policy concerns. If Congress moved back the date the electors vote by two weeks or so, it would move this safe-harbor date back by the same amount.

[To] deal with the foreseeable and unforeseeable problems that could arise from changing our election process almost overnight, pushing this date back would be good policy – particularly for this year’s election. [T]hese minor date changes to the Electoral Count Act should not be controversial . . . Congress would be doing the country a service if it held hearings and addressed the Act, at least for these two minor date issues (the Act is also notoriously ambiguous on other major issues and clearing up these ambiguities, before our next disputed election, would be wise).

Given the sensitivity of anything involving the Electoral Count Act, and Congress’ general propensity not to act before absolutely necessary, the prospects for Congress changing these dates in the Act are perhaps not promising. But moving these dates back would give election officials more time to manage successfully and with less controversy the extraordinary burdens they will likely face this fall.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


The Fight Over Vote-By-Mail is Over<https://electionlawblog.org/?p=113852>
Posted on August 6, 2020 4:03 pm<https://electionlawblog.org/?p=113852> by Richard Pildes<https://electionlawblog.org/?author=7>

The Washington Post has published this <https://www.washingtonpost.com/opinions/2020/08/06/we-all-support-absentee-ballots-now-focus-that/> piece of mine. An excerpt:

The main fight over “vote by mail” is over. President Trump ended it, even if he doesn’t realize that.

In the past few weeks, the president has repeatedly and strongly endorsed absentee voting (good) as a jumping-off point for launching his attack on “universal” mail-in voting (bad). Vice President Pence, in lengthier, more developed comments<https://talkingpointsmemo.com/news/pence-encourages-america-to-vote-absentee-but-not-by-mail-somehow>, has roundly endorsed the same principles. Trump doubled down<https://twitter.com/realDonaldTrump/status/1290692768675901440?ref_src=twsrc%255Etfw%257Ctwcamp%255Etweetembed%257Ctwterm%255E1290692768675901440%257Ctwgr%255E&ref_url=https%253A%252F%252Fwww.businessinsider.com%252Ftrump-says-vote-by-mail-in-florida-is-safe-and-secure-2020-8> on these principles Tuesday, praising Florida’s use of absentee voting as “Safe and Secure, Tried and True.”

What the president perhaps does not realize is that the major issue for the November election has always been absentee voting. The question of universal mail-in voting is a sideshow. . . . The system that most states will be using this fall is absentee voting — precisely the system Trump and Pence have repeatedly endorsed. [As of now, 37 states will, or are likely to, permit people to vote absentee this fall without any special justification (as in Florida) or will permit fear of covid-19 to be a sufficient justification]

Only eight states will be using universal mail-in voting [only four of which will be using universal vote-by-mail for the first time in a presidential election this fall].  The president has already decried Nevada’s recent switch and sued<https://www.cnn.com/2020/08/05/politics/trump-campaign-nevada-mail-in-ballots/index.html> to stop it, but even if critics want to attack these four new, “universal vote-by-mail” states — or all eight of them — they are shooting at a small target. . . .

Many liberal commentators have reacted to Trump’s comments by reflexively making fun of him. They shout, sometimes in all caps<https://twitter.com/RBReich/status/1290409897272762375>, ABSENTEE AND MAIL-IN VOTING ARE THE SAME THING. Alternatively, they point out high-ranking administration officials who have voted absentee in past elections, to charge the president with hypocrisy.

The better strategy, for those who support absentee voting, is to recognize when victory is staring them in the face and grasp it. As a practical matter, the form of mail-in voting that really matters for this fall is absentee voting. The die is cast on that. But in our polarized culture, it is also crucial that the election process be accepted as legitimate, among as many citizens as possible.

Now that the president and vice president have roundly endorsed absentee voting, the focus should be on making sure that everyone understands that. Reporters should be confirming with public officials that they support absentee voting; commentators should be emphasizing the breadth of agreement on this. Down the road, we can argue about whether the administrative difference between absentee voting and universal mail-in voting — whether voters must request an absentee ballot or will be sent one by the state — makes one approach better than the other. For now, the more urgent task is to ensure that the predominant form of mail-in voting this fall is widely endorsed. . .

[T]he predominant form that mail-in voting will take is absentee voting. Every time the president says “absentee voting is good but … ,” the right thing to do is to make sure his endorsement of absentee voting is heard widely.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Facebook Employees Ask Zuckerberg What Would Happen If Trump Used Their Platform To Dispute Election Results”<https://electionlawblog.org/?p=113847>
Posted on August 6, 2020 11:51 am<https://electionlawblog.org/?p=113847> by Rick Hasen<https://electionlawblog.org/?author=3>

Buzzfeed has posted this report<https://www.buzzfeednews.com/article/craigsilverman/facebook-zuckerberg-what-if-trump-disputes-election-results>, with the subhead: “Facebook employees collected evidence showing the company is giving right-wing pages preferential treatment when it comes to misinformation. And they’re worried about how the company will handle the president’s falsehoods in an election year.”
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Posted in cheap speech<https://electionlawblog.org/?cat=130>


“Facebook removes troll farm posing as African-American support for Donald Trump”<https://electionlawblog.org/?p=113845>
Posted on August 6, 2020 11:20 am<https://electionlawblog.org/?p=113845> by Rick Hasen<https://electionlawblog.org/?author=3>

NBC News<https://www.nbcnews.com/tech/tech-news/facebook-removes-troll-farm-posing-african-american-support-donald-trump-n1236056>:

Facebook removed hundreds of accounts on Thursday from a foreign troll farm posing as African-Americans in support of Donald Trump and QAnon supporters. It also removed thousands of fake accounts linked to conservative media outlet The Epoch Times that pushed pro-Trump conspiracy theories about coronavirus and protests in the U.S.

Facebook took down the accounts as part of its enforcement against coordinated inauthentic behavior<https://t.co/oXIJE5MEQA>, which is the use of fake accounts to inflate the reach of content or products on social media.

The foreign pro-Trump troll farm was based in Romania and pushed content on Instagram under names like “BlackPeopleVoteForTrump” and on Facebook under “We Love Our President.”

Troll farms — groups of people that work together to manipulate internet discourse with fake accounts — are often outsourced and purchased by foreign governments or businesses to push specific political talking points. Nathaniel Gleicher, Facebook’s head of security policy, said the troll farm’s motivations were unclear, but they didn’t see “clear evidence of financial motivation” or “clear links to known commercial actors in this space.”

Facebook stressed that the takedowns were based on “behavior, not content,” like breaking rules against creating fake accounts to boost engagement on some pieces of content.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>


“Secretaries of State Are Crucial for Protecting African American Voters”<https://electionlawblog.org/?p=113842>
Posted on August 6, 2020 8:48 am<https://electionlawblog.org/?p=113842> by Rick Hasen<https://electionlawblog.org/?author=3>

New report<https://www.americanprogressaction.org/issues/democracy/reports/2020/08/06/178300/secretaries-state-crucial-protecting-african-american-voters/?fbclid=IwAR08ySb51Msx0JhEU9J_MRoXnL5cgOBQ3_3MRUa2kGS2oi9tvVSIzAilZ_o> from CAP and Democratic Secretaries of State Assn.
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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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