[EL] ELB News and Commentary 8/10/20

[Rick Hasen]

“Kanye West’s presidential bid bolstered by Republican operatives in at least five states”<https://electionlawblog.org/?p=113911>
Posted on August 9, 2020 9:09 pm<https://electionlawblog.org/?p=113911> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/politics/kanye-west-ballot-campaign-gop/2020/08/09/bfc8e58a-d8ce-11ea-9c3b-dfc394c03988_story.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Their mail was not delivered for days. Now these Minneapolis residents are worried about their votes counting.”<https://electionlawblog.org/?p=113909>
Posted on August 9, 2020 9:05 pm<https://electionlawblog.org/?p=113909> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/politics/minneapolis-mail-ballot-delays/2020/08/08/6ecf9978-d8ea-11ea-930e-d88518c57dcc_story.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Abrupt change to census deadline could result in an undercount of Latino and Black communities”<https://electionlawblog.org/?p=113907>
Posted on August 9, 2020 9:03 pm<https://electionlawblog.org/?p=113907> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/politics/abrupt-change-to-census-deadline-could-result-in-an-undercount-of-latino-and-black-communities/2020/08/09/1d074eb6-d8b7-11ea-930e-d88518c57dcc_story.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>



“Trump aides exploring executive actions to curb voting by mail”<https://electionlawblog.org/?p=113905>
Posted on August 9, 2020 9:01 pm<https://electionlawblog.org/?p=113905> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2020/08/08/trump-wants-to-cut-mail-in-voting-the-republican-machine-is-helping-him-392428>

Trump, impatient with the slow nature of lawsuits, suggested last week that the November election be postponed<https://www.politico.com/news/2020/07/30/trump-suggests-delaying-2020-election-387902>, though he later claimed he was merely trying to highlight the possibility of fraud after he faced a backlash from even members of his own party. Only Congress can change the date of the election.

Since then, Trump has mused to aides about what executive orders, if any, he could sign to curb voting by mail.

“I have the right to do it,” Trump told reporters Monday. “We haven’t gotten there yet. We’ll see what happens.”

Yet even conservatives allies, including von Spakovsky, are skeptical Trump has the authority to intervene in elections. John Yoo, a senior Justice Department attorney under former President George W. Bush, agreed. Yoo has been advising the White House recently on unilateral actions Trump could take on immigration, health care and taxes. But he said it didn’t appear Trump could take significant executive action on mail-in voting

Some suggested Trump could try to stop local officials from counting remote ballots after Election Day and direct the Postal Service to not deliver certain ballots to voters using an emergency declaration, according to one of the people.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, chicanery<https://electionlawblog.org/?cat=12>


“The Voting Will End Nov. 3. The Legal Battle Probably Won’t.”<https://electionlawblog.org/?p=113903>
Posted on August 9, 2020 8:54 pm<https://electionlawblog.org/?p=113903> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/08/08/us/politics/voting-nov-3-election.html>

The stormy once-in-a-lifetime Florida recount battle<https://www.nytimes.com/2000/12/13/us/bush-prevails-single-vote-justices-end-recount-blocking-gore-after-5-week.html> that polarized the nation in 2000 and left the Supreme Court to decide the presidency may soon look like a high school student council election compared with what could be coming after this November’s election.

Imagine not just another Florida, but a dozen Floridas. Not just one set of lawsuits but a vast array of them. And instead of two restrained candidates staying out of sight and leaving the fight to surrogates, a sitting president of the United States unleashing ALL CAPS Twitter blasts from the Oval Office while seeking ways to use the power of his office to intervene.

The possibility of an ugly November — and perhaps even December and January — has emerged more starkly in recent days as President Trump complains that the election will be rigged and Democrats accuse him of trying to make that a self-fulfilling prophesy.

With about 85 days until Nov. 3, lawyers are already in court mounting pre-emptive strikes and preparing for the larger, scorched-earth engagements likely to come. Like the Trump campaign, Joseph R. Biden Jr.’s campaign and its network of Democratic support groups are stocking up on lawyers, and Democrats are gaming out worst-case scenarios, including how to respond if Mr. Trump prematurely declares victory or sends federal officers into the party’s strongholds as an intimidation tactic.

The emerging battle is the latest iteration of the long-running dispute over voting rights, one shaped by the view that higher participation will improve the Democratic Party’s chances. Republicans, under cover of dubious or unfounded claims about widespread fraud, are trying to prevent steps that would make it easier for more people to vote and Democrats are pressing more aggressively than ever to secure ballot access and expand the electorate.

But that clash has been vastly complicated this year by the challenge of holding a national election in the middle of a deadly pandemic, with a greater reliance on mail-in voting that could prolong the counting in a way that turns Election Day into Election Week or Election Month. And the atmosphere has been inflamed by a president who is already using words like “coup,”<https://twitter.com/realDonaldTrump/status/1290250416278532096> “fraud”<https://twitter.com/realDonaldTrump/status/1266172570983940101> and “corrupt”<https://twitter.com/realDonaldTrump/status/1285540318503407622?s=20> to delegitimize the vote even before it happens<https://www.nytimes.com/2020/07/31/us/politics/trump-tweet-democracy.html>.

The battle is playing out on two tracks: defining the rules about how the voting will take place, and preparing for fights over how the votes should be counted and contesting the outcome.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, The Voting Wars<https://electionlawblog.org/?cat=60>


“A Look at Voting in the Upcoming Election”<https://electionlawblog.org/?p=113901>
Posted on August 9, 2020 8:46 pm<https://electionlawblog.org/?p=113901> by Rick Hasen<https://electionlawblog.org/?author=3>

Lawyer 2 Lawyer podcast<https://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2020/08/a-look-at-voting-in-the-upcoming-election/>:

Jim Gardner, a specialist in election law out of the University at Buffalo School of Law, discusses voting in the upcoming election, mail-in voting, foreign interference in elections, and what we will see on election day.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Facts and Myths about Misperceptions”<https://electionlawblog.org/?p=113895>
Posted on August 9, 2020 5:09 am<https://electionlawblog.org/?p=113895> by Richard Pildes<https://electionlawblog.org/?author=7>

This is a good survey article <https://pubs.aeaweb.org/doi/pdfplus/10.1257/jep.34.3.220> by Brendan Nyhan about what we know (or wrongly think we know) about misinformation regarding factual matters, including on policy and politics: the sources of misinformation, the distribution of public beliefs about it, and an assessment of which interventions work or fail. An excerpt:

In general, interventions targeting the public face difficult issues in reaching the individuals who hold misperceptions, creating durable changes in beliefs, and scaling in a cost-effective manner across the population. It is therefore important to also consider alternate approaches that seek to limit misperceptions by reducing the supply of misinformation and its spread. One approach is to change the incentives or practices of political elites and publishers. In one field experiment testing the effects of these incentives, a random subset of state legislators from nine states were sent messages before the 2012 election about the political costs of having false claims identified by fact-checkers.

Those who were sent the messages were less likely to have the accuracy of their statements questioned publicly, suggesting that the reminder discouraged false claims (Nyhan and Reifler 2015). Facebook has also announced that it would reduce the reach of groups that repeatedly post false claims and content from publishers who try to game Facebook’s algorithms but have limited reach online, which may not only reduce the prevalence of misinformation but discourage publishers from using such tactics (Dreyfuss and Lapowsky 2019). In addition, online platforms can warn people about false claims and limit their reach when they have been identified by third-party fact-checkers, overcoming the scale and targeting problems that fact-checkers otherwise face. Facebook has made the most extensive efforts in this regard and has seemingly succeeded in reducing the prevalence of false content in the News Feed. Guess et al. (2018) estimate that visits to untrustworthy websites by Americans declined from 27 percent in fall 2016 to 7 percent in fall 2018. Allcott, Gentzkow, and Yu (2019) also find a differential decline in fake news stories during this period on Facebook relative to Twitter, which employs less aggressive content moderation practices, suggesting the same conclusion. …

Even exposure to the ill-defined term “fake news” and claims about its prevalence can be harmful. In an experimental study among respondents from Mechanical Turk, Van Duyn, and Collier (2019) find that when people are exposed to tweets containing the term “fake news,” they become less able to discern real from fraudulent news stories. Similarly, Clayton et al. (2019) find that participants from Mechanical Turk who are exposed to a general warning about the prevalence of misleading information on social media then tend to rate headlines from both legitimate and untrustworthy news sources as less accurate, suggesting that the warning causes an indiscriminate form of skepticism.Any evidence-based response to the problem of misperceptions must thus begin with an effort to counter misinformation about the problem itself. Only then can we design interventions that are proportional to the severity of the problem and consistent with the values of a democratic society
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Senator Richard Blumenthal: “The threat to U.S. elections is real, and frightening. The public has a right to know.”<https://electionlawblog.org/?p=113887>
Posted on August 7, 2020 5:08 pm<https://electionlawblog.org/?p=113887> by Rick Hasen<https://electionlawblog.org/?author=3>

The Senator’s WaPo oped:<https://www.washingtonpost.com/opinions/the-threat-to-us-elections-is-real-and-frightening-the-public-has-a-right-to-know/2020/08/07/366dba0e-d8dd-11ea-930e-d88518c57dcc_story.html>

The warning lights are flashing red. America’s elections are under attack.

This week, I reviewed classified materials in the Senate’s Sensitive Compartmented Information Facility and received a similarly classified briefing on malign foreign threats to U.S. elections. I was shocked by what I learned — and appalled that, by swearing Congress to secrecy, the Trump administration is keeping the truth about a grave, looming threat to democracy hidden from the American people. On Friday, the Office of the Director of National Intelligence issued a statement<https://www.cbsnews.com/news/u-s-intelligence-shows-russia-is-trying-to-denigrate-biden-china-prefers-trump-lose/> that only hints at the threats.

The facts are chilling. I believe the American public needs and deserves to know them. The information should be declassified immediately.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Fifth Circuit Slow-Walks Argument in Critical Texas Voting Rights Case”<https://electionlawblog.org/?p=113885>
Posted on August 7, 2020 3:10 pm<https://electionlawblog.org/?p=113885> by Rick Hasen<https://electionlawblog.org/?author=3>

CAC<https://www.theusconstitution.org/blog/fifth-circuit-slow-walks-argument-in-critical-texas-voting-rights-case/>:

Last week, the U.S. Court of Appeals for the Fifth Circuit announced that it will not hear oral argument in a critical Texas voting rights case until August 31<http://www.ca5.uscourts.gov/clerk/calendar/2009/08.htm>, pushing its decision-making process dangerously close to the November 3 general election. The case, Texas Democratic Party v. Abbott, is a challenge to Section 82.003 of Texas’s Election Code, which provides that only voters 65 years of age or older have the right to vote by mail without any additional excuse on election day. Under current pandemic conditions, this provision forces those under 65 to risk their lives to vote in person. The Texas Democratic Party, along with individual voters, sued, alleging that this provision violates younger voters’ rights under the Twenty-Sixth Amendment, which provides that “[t]he right of citizens of the United States . . . to vote shall not be denied or abridged by . . . any State on account of age.” Constitutional text and history are on the plaintiffs’ side, and by slow-walking proceedings in the case, the Fifth Circuit endangers the fundamental right to vote….
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


Norm Ornstein: “Enlist George W. Bush and Al Gore to help us prevent a Trump-Biden nightmare in 2020”<https://electionlawblog.org/?p=113883>
Posted on August 7, 2020 1:36 pm<https://electionlawblog.org/?p=113883> by Rick Hasen<https://electionlawblog.org/?author=3>

Norm oped<https://www.usatoday.com/story/opinion/2020/08/07/george-bush-al-gore-help-us-prevent-trump-biden-nightmare-column/3310060001/> in USA Today:

The vote totals counted and announced on Nov. 3 may be very different from the final tallies. We may see state legislatures or even governors contesting these results, and possibly putting up alternative slates of electors to cast Electoral College votes for different winners. We may find that other deadlines in the law — for states to certify their electors, for the electors to meet, for the votes to arrive in Congress —unable to be met. Courts may intervene, and, as we saw with the primary in Wisconsin and the highly partisan actions<https://www.reuters.com/article/us-health-coronavirus-election-wisconsin/wisconsins-supreme-court-orders-primary-to-proceed-as-planned-on-tuesday-idUSKBN21O2JN> of the Wisconsin Supreme Court, may do so with a distinct bias.

If there are contested slates of electors, Congress, under the 1887 Electoral Count Act<https://www.law.cornell.edu/uscode/text/3/15>, has to resolve them. But the law itself is ambiguous, and opportunities for mischief<https://www.rollcall.com/2020/06/01/old-law-could-leave-2020-presidential-race-in-stalemate/> and chicanery are great. Unresolved is the question of whether, if the House and Senate cannot agree on which slates to certify, the electoral votes necessary to elect a president will be the overall 270<https://www.270towin.com/>, or a majority of those electors certified. We also face a possibility that we could have a 50-50 Senate at that time — with potentially a tie broken by the vice president, who has a direct conflict of interest.

hat to do? The best course of action is to bring back Bush and Gore — not to replay 2000, but to lead a commission to come up with a template in advance for how to handle each of these scenarios, and to be available, if and as they occur, to offer advice and set up guidelines for what to do.

Who else would be on the Bush-Gore commission? Homeland security experts like Michael Chertoff<https://www.chertoffgroup.com/team/michael-chertoff>, Fran Townsend<https://www.aspeninstitute.org/our-people/fran-townsend/> and Janet Napolitano<https://www.dhs.gov/janet-napolitano>. Former election officials like Trey Grayson<https://frostbrowntodd.com/people/trey-grayson/> and Mark Ritchie<https://www.startribune.com/mark-ritchie-former-minnesota-secretary-of-state-to-lead-nonprofit-international-education-organization/500884772/>, who served as Secretaries of State in Kentucky and Minnesota, respectively, and Trevor Potter<https://twitter.com/thetrevorpotter>, the former chair of the Federal Election Commission. Election lawyers like Ben Ginsberg and Bob Bauer<https://bipartisanpolicy.org/the-presidential-commission-on-election-administration/>, who headed an earlier bipartisan commission on election reform. Election law experts like Rick Hasen<https://www.law.uci.edu/faculty/full-time/hasen/> at the University of California-Irvine Law School and Ned Foley<https://moritzlaw.osu.edu/faculty/edward-b-foley/> at Ohio State. Political scientists and historians specializing in Congress and the Constitution, former lawmakers, former top executive-branch officials, and perhaps key leaders from the tech, business and labor worlds.

No group of individuals can erase our political tribalism or efforts to suppress votes or put thumbs on the scales of election outcomes. No commission can supersede the actions of lawmakers in states or Congress, or the decisions made by judges. But a group of our most credible citizens, headed by the two who know best the dynamics and consequences of a contested and controversial election, can set out warning signals and lay down boundaries that might guide lawmakers and judges, or at least shed a brighter light if they cross bright lines.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Big Tech’s head-spinning rules for the 2020 election”<https://electionlawblog.org/?p=113881>
Posted on August 7, 2020 10:52 am<https://electionlawblog.org/?p=113881> by Rick Hasen<https://electionlawblog.org/?author=3>

Donie O’Sullivan for CNN<https://www.cnn.com/2020/08/07/tech/big-tech-2020-election-analysis/index.html?utm_source=twCNN&utm_content=2020-08-07T15%3A50%3A02&utm_medium=social&utm_term=link>:

Late Wednesday, Twitter made waves by temporarily restricting<https://www.cnn.com/2020/08/05/tech/twitter-trump-restrict/index.html> a Trump campaign account’s ability to tweet because it shared a video containing false claims President Trump had made about the coronavirus. But Twitter took no action on President Trump’s personal account, which re-shared the video.

The next day, Facebook cracked down on a<https://www.cnn.com/2020/08/06/tech/facebook-trump-pac-ban/index.html> pro-Trump PAC’s ability to advertise after spreading falsehoods even though the platform has repeatedly said it will continue to allow politicians to lie openly in advertising.If all that makes your head spin, you’re not alone.

These examples are indicative of a much wider problem for the big tech platforms: At a time when Facebook (FB<https://money.cnn.com/quote/quote.html?symb=FB&source=story_quote_link>) and Twitter (TWTR<https://money.cnn.com/quote/quote.html?symb=TWTR&source=story_quote_link>) have put a greater spotlight on themselves by taking action against posts from Trump and accounts linked to him, the companies’ rules for handling content generally and political misinformation specifically remain so confusing, so ad-hoc, that even the staff at these companies sometimes struggle to comprehend them.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>


Alabama: “Absentee voting lawsuit against state dismissed by judge”<https://electionlawblog.org/?p=113879>
Posted on August 7, 2020 10:50 am<https://electionlawblog.org/?p=113879> by Rick Hasen<https://electionlawblog.org/?author=3>

AL.com<https://www.al.com/politics/2020/08/absentee-voting-lawsuit-against-state-dismissed-by-judge.html>:

A state judge on Wednesday threw out a lawsuit by disability advocates challenging provisions of Alabama’s absentee ballot laws, saying his court lacked jurisdiction and the plaintiffs lacked standing to sue.

The lawsuit, initially filed in May in Montgomery County Civil Court by the League of Women Voters and several elderly or sick Alabamians, contended that provisions requiring absentee voters to have photo IDs before getting their ballots and another requiring a notary public or two witnesses attest that the voter filled out the ballot violate Alabama’s constitution amid the COVID-19 pandemic….

But Montgomery County Civil Court Judge J.R. Gaines dismissed the lawsuit for several reasons.

“For the reasons laid out in the defendants’ motions to dismiss, the court finds that it lacks jurisdiction over Plaintiffs’ complaint because Plaintiffs present a nonjusticiable political question, plaintiffs lack standing to sue defendants, and the claims against defendants are barred by sovereign immunity,” Gaines wrote in his order. “Additionally, the court notes that even if it had found that jurisdiction exists, it would have found that plaintiffs have failed to state a claim upon which relief can be granted, for the reasons laid out in the defendants’ motions to dismiss.”

That’s really the entire analysis; one of the most cursory and unsatisfying opinions<https://www.alabamaag.gov/Documents/news/League%20of%20Women%20Voters%20Final%20Judgment.pdf> in this area that you will read.
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Posted in court decisions<https://electionlawblog.org/?cat=129>, 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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