[EL] ELB News and Commentary 8/17/20
Rick Hasen
rhasen at law.uci.edu
Mon Aug 17 07:17:13 PDT 2020
The Stanford-MIT Healthy Elections Project: Research and Service to Democracy During the Pandemic<https://electionlawblog.org/?p=114109>
Posted on August 17, 2020 7:08 am<https://electionlawblog.org/?p=114109> by Rick Hasen<https://electionlawblog.org/?author=3>
The following is a guest post from Nate Persily and Charles Stewart:
The Stanford-MIT Healthy Elections Project: Research and Service to Democracy During the Pandemic
Nathaniel Persily, Stanford University
Charles Stewart III, MIT[cid:image001.png at 01D67466.6DAB5700]
The Stanford-MIT Healthy Elections Project<https://healthyelections.org/> is an initiative aimed at addressing the challenge of holding elections in the midst of a global pandemic. Readers of the Election Law Blog need no introduction to the unprecedented changes to American election administration that are occurring in response to the COVID-19 crisis.
[cid:image002.png at 01D67466.6DAB5700]
What readers may not know is that the Healthy Elections Project website (HealthyElections.Org) is a one-stop information portal about voting in the current age — a site that hosts comprehensive research about how states have responded to the election administration challenges facing them; research into salient topics such as supply chain issues; and links to a carefully curated collection of tools that can help election administrators manage the transition to expanded mail voting and the maintenance of healthy in-person voting options.
The goal of the project is to bring the best research to the public and helpful tools to election administrators to address the challenges the pandemic poses for the 2020 election. The tools<https://healthyelections.org/tools> referenced on the site have been developed by university researchers and members of the civic tech community to help election officials manage resource allocation of in-person polling places, locate in-person polling places and drop boxes, manage the workflow of expanded mail-ballot operations, and communicate critical information to voters. Many of tools, developed and hosted by organizations such as the Center for Technology and Civic Life,<https://www.techandciviclife.org/> URI Votes<https://web.uri.edu/urivotes/>, the USC Center for Inclusive Democracy<https://cid.usc.edu/>, and the Caltech/MIT Voting Technology Project<http://web.mit.edu/vtp/>, already have proven track records, but deserve a new look by officials as they adjust how they allocate resources, facilities, and people to respond to a fluid logistical situation.
An important and distinct part of the project involves research conducted by students, centered on the two host campuses, into a variety of topics that emerge as voting proceeds. Currently, the State Updates<https://healthyelections.org/state-updates> pages host reports that focus on fifteen states, with more to be added in the coming weeks. Each state page includes a report, authored by a team of students, that addresses the political context of the presidential preference primary, measures taken by election officials to confront the challenges of voting in the midst of an unfolding pandemic, and an assessment of the strains on the state’s election administration that were revealed in the voting. A team of students at MIT is complementing these legal and administrative summaries with deep dives into the election data that has been generated by these early primaries. States vary in how much data is generated by an election, but to the degree possible, these election-data reports examine patterns of turnout, mail-ballot usage, polling place closures, voter registration, and similar election administration topics. For example, the recent research on the North Carolina<https://healthyelections.org/sites/default/files/2020-08/North%20Carolina%20Memo.pdf>, <https://healthyelections.org/sites/default/files/2020-08/North%20Carolina%20Memo.pdf> Wisconsin <https://healthyelections.org/sites/default/files/2020-08/Wisconsin%20Election%20Analysis%20Version%202.pdf> and Florida<https://healthyelections.org/sites/default/files/2020-06/Florida%20Election%20Memo.pdf> primaries provide the first insight into the scale of uncounted absentee ballots, and the age and racial disparities in which ballots get counted.
Research on the Healthy Elections website consists of more than just state summaries. On the site, one will find a comprehensive analysis of election administration supply chain issues<https://healthyelections.org/sites/default/files/2020-06/supply_chain_memo.pdf>, a vote-by-mail resource guide<https://healthyelections.org/vote-mail-resource-guide>, and in the coming weeks, a template for assisting election administrators in developing safe polling places (written in collaboration with the Stanford Design School) and a review of best practices for voter education and outreach. Through our partnership with the popular Lawfare<https://www.lawfareblog.com/topic/healthy-elections-project> blog, research from the Healthy Elections Project will also be summarized in shorter form articles for a general audience.
In the coming weeks the website will also feature a COVID-related election litigation tracker to make it easier to find, sort and analyze the avalanche of election litigation spawned by the pandemic. We have summarized and issue-tagged nearly 200 cases filed this election season.
The Healthy Elections Project is about much more than research, however. With our partners, we are providing direct assistance to election officials to help administer the election in the pandemic. Most notably, we have launched initiatives and supported other organizations to recruit poll workers amidst a nationwide shortage. We have established partnerships with PowerThePolls.org, the Association of Pro Bono Counsel, and Campus Compact to assist election officials with recruitment and placement of poll workers.
The November election is upon us now. Events are moving quickly. We encourage the larger election law community to avail themselves of the resources on the Healthy Elections website, and to consider it a place to start to get a comprehensive view of issues as they unfold. We also encourage the community to alert us to anything we have missed. The landscape of administration of the 2020 election is rapidly expanding and changing, with new issues, such as threats to the postal system, arising almost daily. By working together to understand the unprecedented challenges the nation faces in running an election during a pandemic, we will be better positioned to confront them in the ten weeks remaining until Election Day.
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Posted in election administration<https://electionlawblog.org/?cat=18>
Federal Election Commission Staffers Send Letter Calling for More Racial Diversity and Inclusion at the FEC<https://electionlawblog.org/?p=114153>
Posted on August 17, 2020 7:00 am<https://electionlawblog.org/?p=114153> by Rick Hasen<https://electionlawblog.org/?author=3>
You can read the letter here<https://beta.documentcloud.org/documents/20384449-dei-letter-to-wh-senate-8-17-20>. It begins:
We the undersigned, nonpartisan staff members of the Federal Election Commission (FEC) affirm our commitment to make our workplace a model of inclusion and equal opportunity for all, regardless of racial, class, gender, or other differences. To give voice to our shared belief that equity is a vital component of a healthy workplace, and in order to address the historical lack of racial diversity at the top ranks of our agency, we write in our personal capacities to ask the White House to nominate and the United States Senate to confirm people of color to serve as FEC Commissioners.
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Posted in federal election commission<https://electionlawblog.org/?cat=24>
Mark Meadows Tries to Reverse the Burden of Proof on Widespread Voter Fraud<https://electionlawblog.org/?p=114151>
Posted on August 17, 2020 6:55 am<https://electionlawblog.org/?p=114151> by Rick Hasen<https://electionlawblog.org/?author=3>
Me<https://twitter.com/rickhasen/status/1295012703350603777?s=20> at Twitter:
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>
“Regular Iowans can change things by voting for a constitutional convention on Nov. 3”<https://electionlawblog.org/?p=114149>
Posted on August 17, 2020 6:54 am<https://electionlawblog.org/?p=114149> by Rick Hasen<https://electionlawblog.org/?author=3>
J.H. Snider<https://www.desmoinesregister.com/story/opinion/columnists/iowa-view/2020/08/16/iowa-constitution-convention-referendum-vote-november/3371377001/> in the Des Moines Register.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Trump Administration Endorses Absentee Voting<https://electionlawblog.org/?p=114146>
Posted on August 17, 2020 6:06 am<https://electionlawblog.org/?p=114146> by Richard Pildes<https://electionlawblog.org/?author=7>
Once again, the Trump administration has strongly endorsed no-excuse absentee voting – the form of voting that matters most this fall. This time the endorsement came from Chief of Staff Mark Meadows, whom Jake Tapper interviewed this Sunday. As usual, the statements came in the context of condemning “universal mail-in voting.” Over and over, the message of the administration and Trump campaign is: absentee voting (good), “universal mail-in voting” (bad).
As I’ve said<https://www.washingtonpost.com/opinions/2020/08/06/we-all-support-absentee-ballots-now-focus-that/> before, I think journalists in these interviews should emphasize and lock down this endorsement of absentee voting. But Tapper ignores this endorsement, rushing past it to get to the areas of conflict. I understand that, but in this context, highlighting areas of widespread agreement is at least as important. The public needs to hear the message that there is no disagreement about the legitimacy of absentee voting – the dominant form vote-by-mail will take this fall.
Here’s the relevant excerpt from the transcript<http://transcripts.cnn.com/TRANSCRIPTS/2008/16/sotu.01.html> (highlighting is mine):
TAPPER: Why is President Trump trying to prevent Americans from exercising their right to vote, if they choose to vote this way, especially during a pandemic?
MEADOWS: Well, the president doesn’t have a problem with anybody voting by mail, if you would look at it in terms of maybe a no-excuse absentee ballot.
What he opposes is universal mail-in ballots, where you send millions of ballots out to registered voters across the country, even those that don’t request it.
You know, I have worked a number of times at a precinct, and I know how those rolls are not accurate. People move. People die. And yet, when we’re going to send out ballots all across the country, that’s not just the — asking for a disaster. It really is knowing that what you’re sending out is — is inaccurate.
So, that’s the problem he has with it. From a no-excuse absentee, being able to mail in your ballots, I think the president actually has already requested an absentee ballot for Florida, where he will be casting his ballot in that manner.
We want to make sure that every vote counts, but that only one vote counts. And so, when you look at that, this debate is really over a process. A number of states are now trying to figure out how they’re going to go to universal mail-in ballots. That’s a disaster, where we won’t know the election results on November 3, and we might not know it for months.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Trump’s Policies Are a Boon to the Super Rich. So Where Are All the Seven-Figure Checks?”<https://electionlawblog.org/?p=114144>
Posted on August 16, 2020 10:18 pm<https://electionlawblog.org/?p=114144> by Rick Hasen<https://electionlawblog.org/?author=3>
NYT:<nyt:>
Mr. Trump is hardly lacking for cash; he has received huge numbers of small donations online<https://www.npr.org/2020/07/20/892829716/the-republican-national-committee-says-it-has-a-record-100-million-on-hand> from a fervent grass-roots base, and he raised a jaw-dropping $165 million in July<https://www.nytimes.com/2020/08/05/us/politics/trump-biden-campaign-finance.html> for his campaign and the two fund-raising committees that he shares with the Republican National Committee. The Trump Victory fund, one of those committees, has also collected respectable sums through donations that cannot exceed $580,600 — as opposed to super PACs, which are vessels for unlimited contributions.
But the president’s sagging popularity, driven by his erratic and divisive behavior<https://www.nytimes.com/2020/07/18/us/politics/trump-coronavirus-response-failure-leadership.html> during the coronavirus crisis, has prompted some of the wealthiest Republicans — the heavy artillery of modern politics — to delay, divert or diminish their giving, just as Joseph R. Biden Jr. has begun to tap a rich vein of Wall Street and Silicon Valley support<https://www.nytimes.com/2020/07/16/us/politics/joe-biden-fund-raising.html>, party operatives and donors said in interviews.
Thus far, only six of the top 38 donors to Trump-related super PACs in 2016 and 2018 have contributed to America First for the president’s re-election, according to a New York Times analysis of federal campaign finance data.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>
“Pelosi calls House lawmakers back to vote on post office legislation”<https://electionlawblog.org/?p=114141>
Posted on August 16, 2020 10:02 pm<https://electionlawblog.org/?p=114141> by Rick Hasen<https://electionlawblog.org/?author=3>
WaPo:<https://www.washingtonpost.com/politics/2020/08/16/pelosi-calls-house-back-washington-block-postal-service-changes/>
House Speaker Nancy Pelosi (D-Calif.) called House lawmakers back Sunday to try to prevent Postal Service changes that Democrats fear could make it harder for millions of Americans to cast mail ballots in November. Members will be expected to return to Washington this week.
The move comes as Democrats warn that changes implemented by Postmaster General Louis DeJoy, a former Republican National Convention finance chairman, could wreak havoc during the election in which a record number of people are likely to vote by mail because of concerns about the coronavirus<https://www.washingtonpost.com/health/2020/02/28/what-you-need-know-about-coronavirus/?itid=lk_inline_manual_4> pandemic.
The House previously wasn’t scheduled to return until September.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>
“Trump campaign’s poll-watching plans spark fears of voter suppression”<https://electionlawblog.org/?p=114138>
Posted on August 16, 2020 5:30 pm<https://electionlawblog.org/?p=114138> by Rick Hasen<https://electionlawblog.org/?author=3>
Fredreka Schouten for CNN<https://www.cnn.com/2020/08/15/politics/trump-campaign-poll-watching-battles/index.html>:
The Trump campaign is working to dispatch tens of thousands of election monitors to battleground states in what is shaping up as the Republican Party’s largest-ever poll-watching operation.
The party’s aggressive plans for poll-monitoring have sparked charges from Democrats and voting-rights groups that Republicans are gearing up to suppress voting in key states as President Donald Trump repeatedly claims<https://www.cnn.com/2020/08/14/politics/what-matters-august-13/index.html>, without evidence, that voter fraud will imperil November’s election.Republicans say their new push will allow them to protect election integrity and better coordinate their get-out-vote operations.
Both sides are headed for a legal showdown on the issue in Pennsylvania — a state Trump won in 2016 by about 44,000 votes out of 6 million cast.The Trump campaign is fighting a Pennsylvania law that restricts poll watchers to monitoring voting in the county in which they live — one of dozens of lawsuits filed by Republicans and Democrats that challenge the ground rules of a fast-approaching election that state and local officials are racing to carry out in the midst of the coronavirus pandemic.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“State officials rush to shore up confidence in Nov. 3 election as voters express new fears about mail voting”<https://electionlawblog.org/?p=114136>
Posted on August 16, 2020 4:59 pm<https://electionlawblog.org/?p=114136> by Rick Hasen<https://electionlawblog.org/?author=3>
WaPo:<https://www.washingtonpost.com/politics/state-officials-rush-to-shore-up-confidence-in-nov-3-election-as-voters-express-new-fears-about-mail-voting/2020/08/16/3d511144-df23-11ea-b205-ff838e15a9a6_story.html?hpid=hp_hp-top-table-high_trumpvote-339pm%3Ahomepage%2Fstory-ans>
President Trump’s unprecedented attacks on the U.S. Postal Service amid widespread mail delays across the country are shaking voters’ faith that their ballots will be counted, prompting a rush among federal, state and local officials to protect the integrity of the Nov. 3 election.
Thousands of voters have called government offices in recent days to ask whether it is still safe to mail their ballots, according to officials across the country. Attorneys general from at least six states are huddling to discuss possible lawsuits against the administration to block it from reducing mail service between now and the election, several told The Washington Post. State leaders are scrambling to see whether they can change rules to give voters more options, and Democrats are planning a massive public education campaign to shore up trust in the vote and the Postal Service.
House Speaker Nancy Pelosi (D-Calif.) on Sunday announced that she was calling the House back early from its summer recess to vote on legislation later this week that would block changes to Postal Service operations. House Democrats on Sunday also announced plans for an emergency hearing on mail delays later this month.
“He is undermining the safest voting method during a pandemic and forcing people to cast a ballot in person,” said Colorado Secretary of State Jena Griswold (D). “It is reprehensible.”
The race to action comes amid escalating worries that even if the president does not succeed in blocking mail voting, he has created a dangerous crisis of confidence that could jeopardize whether Americans view the eventual outcome as legitimate.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, Election Meltdown<https://electionlawblog.org/?cat=127>
“Traders Brace for Haywire Markets Around Presidential Election; Betting on a wave of market volatility straight through to the inauguration”<https://electionlawblog.org/?p=114134>
Posted on August 16, 2020 4:54 pm<https://electionlawblog.org/?p=114134> by Rick Hasen<https://electionlawblog.org/?author=3>
WSJ reports.<https://www.wsj.com/articles/traders-brace-for-haywire-markets-around-presidential-election-11597570200?st=vqv38mimg1kb4sk&reflink=article_copyURL_share>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
The list of COVID-19 election cases hits 200<https://electionlawblog.org/?p=114131>
Posted on August 16, 2020 1:54 pm<https://electionlawblog.org/?p=114131> by Justin Levitt<https://electionlawblog.org/?author=4>
Justin here. I’m tracking the litigation over election issues related to COVID-19 … and the list of cases just hit 200<https://electionlawblog.org/?p=111962>. 202, actually.
The number in each state isn’t necessarily a good indication of the contentiousness of the issues: any individual case may be “big” or “small” — or a good case or a shoddy one — and some of these cases are essentially repeat claims of others. But overall, that’s still an awful lot of legal paper for mid-August.
These are just the cases I know of — I’m sure I’m missing some. State court cases are particularly difficult to track. I think that seven states have been spared so far (Delaware, Kansas, Nebraska, Vermont, Washington, West Virginia, and Wyoming) … but if you know of a COVID-related election case I’m missing here<https://electionlawblog.org/?p=111962>, please let me know.
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Posted in election law and constitutional law<https://electionlawblog.org/?cat=55>, election law biz<https://electionlawblog.org/?cat=51>, Election Meltdown<https://electionlawblog.org/?cat=127>
“‘Ballot harvesting’ targeted amid fight over voting rules”<https://electionlawblog.org/?p=114112>
Posted on August 15, 2020 12:12 pm<https://electionlawblog.org/?p=114112> by Rick Hasen<https://electionlawblog.org/?author=3>
AP:<https://mynews4.com/news/coronavirus/ballot-harvesting-targeted-amid-fight-over-voting-rules-08-15-2020>
Although widely practiced and rarely found to be abused, the rule permitting a third party to collect and return multiple ballots remains a source of partisan dispute. Those fights are likely to continue up to Election Day as states adjust their laws for the pandemic.
More than half of states allow a third party to collect ballots. And political groups and campaigns from both parties have run ballot-collection programs aimed at boosting turnout and ensuring voters who are older, homebound, disabled, or live far from U.S. postal services can get their ballot returned…
California since 2016 has allowed for someone to collect an unlimited number of ballots from voters, though it does bar someone from being paid based on how many ballots they return.
California’s law became the source of controversy and GOP criticism after Democrats used the practice to their advantage in 2018, flipping Republican-held congressional seats after a flood absentee ballots came in before the deadline and were counted after Election Day.
Richard L. Hasen, a law professor and elections expert at the University of California, Irvine, School of Law, said that despite then-U.S. House Speaker Paul Ryan declaring it “bizarre,” there was no evidence in those contests that any ballots were tampered with.
“On the one hand, there’s going to be much more need for the use of absentee ballots because of the potential safety concerns of voting in person,” Hasen said of the 2020 election. “On the other hand, there are going to be more people who are going to be receiving absentee ballots and more potential for interfering with them.”
Hasen said that’s particularly true for states like Nevada that plan to send ballots to voters in the mail regardless of whether they requested one.
.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>
Ned Foley on CNN’s Smerconish Talking About “the Blue Shift” and 2020 Election Legitimacy<https://electionlawblog.org/?p=114107>
Posted on August 15, 2020 12:03 pm<https://electionlawblog.org/?p=114107> by Rick Hasen<https://electionlawblog.org/?author=3>
Watch here.<https://www.cnn.com/videos/tv/2020/08/15/how-the-blue-shift-could-affect-the-2020-race.cnn>
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Posted in election administration<https://electionlawblog.org/?cat=18>, Election Meltdown<https://electionlawblog.org/?cat=127>
South Korea’s Election: Voting Nearly All in Person, High Turnout, No New Infections<https://electionlawblog.org/?p=114105>
Posted on August 15, 2020 5:21 am<https://electionlawblog.org/?p=114105> by Richard Pildes<https://electionlawblog.org/?author=7>
As a follow-up to Dr. Fauci’s comments on the safety of in-person voting, it is worth noting that, back in April, South Korea was one of the first countries to hold major national elections since the pandemic began. South Korea has virtually no mail-in voting. Turnout for these elections was the highest since 1992. And yet, analysts have concluded there were zero confirmed Covid-19 cases related to exposure at the polls.
South Korea took a number of measures to make this possible. In particular, the government encouraged early in-person voting, to reduce crowding at the polls, and 40% of voters cast their ballots that way. For a full study of these elections, see this detailed report <https://healthyelections.org/sites/default/files/2020-06/comparative_case_south_korea.pdf> from HealthyElections.org.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Dr. Fauci: “No reason why we shouldn’t be able to vote in person”<https://electionlawblog.org/?p=114102>
Posted on August 15, 2020 4:32 am<https://electionlawblog.org/?p=114102> by Richard Pildes<https://electionlawblog.org/?author=7>
This is a critically important statement from Dr. Fauci, from this interview <https://www.nationalgeographic.com/science/2020/08/what-anthony-fauci-says-united-states-really-needs-to-reopen-safely-cvd/#close> two days ago.
It’s important that people have the option of voting by mail, which at least 80% or so of voters will now have. But as a number of us have been arguing (see here<https://www.washingtonpost.com/opinions/2020/06/23/absentee-ballots-will-be-critical-this-fall-in-person-voting-is-even-more-essential/> here<https://www.theatlantic.com/ideas/archive/2020/06/looming-threat-voting-person/613552/> and here<https://www.nytimes.com/2020/08/11/opinion/trump-election-day.html>), in-person voting remains essential this fall. Indeed, my own view is that, as long as election officials can ensure the capacity needed for in-person voting, we should actually be encouraging people to vote in person. The more votes cast in person, the more likely we are to avoid some of the worst-case scenarios concerning the election, for reasons the linked pieces explain.
Deborah Roberts
What about voting? So many people are concerned we’re in an election year. Some people are going to be heading to the polls in the next few weeks. Can people safely go out and vote in person, given that this year, there is so much concern around the vote?
Anthony Fauci
I think if carefully done, according to the guidelines, there’s no reason that I can see why that not be the case. For example, when you look at going to a grocery store now in many regions and counties and cities that are doing it correctly, they have “X”s every six or more feet. And it says, Don’t leave this spot until the person in front of you left their spot. And you can do that, if you go and wear a mask, if you observe the physical distancing, and don’t have a crowded situation, there’s no reason why you shouldn’t be able to do that. I mean, obviously if you’re a person who is compromised physically or otherwise, you don’t want to take the chance. There’s the situation of mail-in voting that has been done for years in many places. So there’s no reason why we shouldn’t be able to vote in person or otherwise.
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--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
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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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