[EL] ELB News and Commentary 2/3/20

[Rick Hasen]

“How The Trump Admin’s Attempt To Perpetuate The Voter Fraud Myth Failed Miserably”<https://electionlawblog.org/?p=109283>
Posted on February 3, 2020 5:11 am<https://electionlawblog.org/?p=109283> by Rick Hasen<https://electionlawblog.org/?author=3>

TPM has posted this excerpt<https://talkingpointsmemo.com/cafe/how-the-trump-administrations-attempt-to-perpetuate-the-voter-fraud-failed-miserably> from my new book, Election Meltdown<https://www.amazon.com/Election-Meltdown-Distrust-American-Democracy/dp/0300248199/ref=sr_1_1?keywords=hasen+election+meltdown&qid=1565015345&s=digital-text&sr=1-1-catcorr>. Here is a taste:

The commission was started to back up Trump’s unsupported claims of massive voter fraud, which he advanced as the reason Hillary Clinton won the popular vote in the 2016 presidential election. Trump named Vice President Mike Pence the nominal chair of the commission, but then-Kansas Secretary of State Kris Kobach, the vice chair, was the driving force behind its operation. Kobach is one of the country’s leading public figures contending that voter fraud is a major problem in the United States. He is one of a small group of public figures I’ve dubbed the “fraudulent fraud squad,” who built up the myth of rampant voter fraud that Republican legislatures have used to justify severe rules making it harder to register and vote. Kobach ran the meetings of the commission and seemed to dictate its agenda.

The collapse of the Pence-Kobach fraud commission was a watershed moment in the modern history of voter fraud mythmaking and attempts at voter suppression. For years, people like Kobach and the Heritage Foundation’s Hans von Spakovsky had spun stories of voter fraud by relying upon anecdotal accounts, innuendo, falsehoods, and accusations that almost never panned out. Most of this cheap talk was not subjected to cross-examination or rigorous study. The trial and commission fiasco changed all that….

I myself received a shout-out from Adams in documents released in litigation after the commission closed. In an email exchange with von Spakovsky and some PILF employees at the time of the commission’s founding, Adams commented on my earlier criticism of their work perpetuating the voter fraud myth: “Rick Hasen is a raw enemy activist… He is the central organizing location of our foes. He is going to get very ugly toward me and Hans when/if we are nominated by the President to the Voter Fraud Commission.” Logan Churchwell, the spokesperson for PILF, urged Adams to “push” my “buttons” so I would become “unhinged.” “Sick of him being the elder statesman in the eyes of the MSM [mainstream media].”
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“The Alarming Prospect of the Supreme Court Deciding the 2020 Election; If the country’s nine justices wind up deciding the presidential race, things could get very ugly very quickly”<https://electionlawblog.org/?p=109281>
Posted on February 3, 2020 5:07 am<https://electionlawblog.org/?p=109281> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://www.theatlantic.com/ideas/archive/2020/02/supreme-court-elections/605899/> for The Atlantic, part of the rollout of my new book, Election Meltdown<https://www.amazon.com/Election-Meltdown-Distrust-American-Democracy/dp/0300248199/ref=sr_1_1?keywords=hasen+election+meltdown&qid=1565015345&s=digital-text&sr=1-1-catcorr>. It begins:

Among the many strange and worrying truths about American elections, one has a tendency to get lost: The path to the presidency can run not just through battleground states but also through the Supreme Court.

Back in 2000, it was the Supreme Court in Bush v. Gore<https://scholar.google.com/scholar_case?case=2298973060085224552&hl=en&as_sdt=6&as_vis=1&oi=scholarr> that put an end to a month-long post-election battle between the Democrat Al Gore and the Republican George W. Bush over who would be awarded the state of Florida’s Electoral College votes and, in turn, the presidency. This time, were the outcome of the 2020 election to fall to the Court, the situation could be far messier, and at stake would be the legitimacy of both the Court and the entire American electoral process….

Aside from these general rulings, the Supreme Court and lower courts have become more and more involved in disputes over election procedures, balloting, and vote counting. According to statistics I compiled for my new book, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy<https://www.amazon.com/Election-Meltdown-Distrust-American-Democracy/dp/0300248199/ref=sr_1_1?keywords=hasen+election+meltdown&qid=1565015345&s=digital-text&sr=1-1-catcorr>, the amount of election-related litigation keeps rising, and is now at nearly triple the rate of litigation in the period before the 2000 election. The 2018 election saw the largest number of election-related cases since at least 1996 (the first year for which I have been keeping records), which is all the more shocking given that litigation rates in midterm-election years tend to be lower than in presidential-election years. With Democrats bringing ever more lawsuits<http://www.rollcall.com/news/campaigns/national-democratic-groups-litigate-2020-courts> challenging restrictive voting practices put in place by Republican legislatures and elected officials, there’s every reason to believe that another record will be set in 2020, and that the most important of these cases will end up before the Supreme Court.

No one knows which cases will make it to the Court during the 2020 election season, but based on its generally conservative track record of late, it is a good bet that the Court will allow all but the most egregious efforts at voter suppression to go through. A recent example involved a law in North Dakota requiring voters to produce identification with a residence address on it, which uniquely burdened<https://electionlawblog.org/?p=101710> Native Americans living on reservations. In 2018, the Court refused to block this law<https://electionlawblog.org/?p=101420>, despite a total lack of evidence that the state had a good reason to impose it. That same year, the Court gave a green light to Ohio’s tough voter-purge practices<https://www.supremecourt.gov/opinions/17pdf/16-980_f2q3.pdf>. In addition, the Court’s conservative majority has been cutting back on protections of the Voting Rights Act for the last decade, most significantly when it killed off a key provision of the act in the 2013 Shelby County v. Holder<https://scholar.google.com/scholar_case?case=4053797526279899410&hl=en&as_sdt=6&as_vis=1&oi=scholarr> case.

Most of these disputes over voting rules and elections, and Bush v. Gore itself, featured a Supreme Court divided 5–4 between the Court’s conservatives and liberals, with the conservatives coming out on top. When angry Democrats confronted the late Justice Antonin Scalia about the Court handing the 43rd presidency to Bush, Scalia told them to “get over it.” For the most part, people did get over it, with the Court’s legitimacy not taking a serious hit after the case.

But increased polarization and other changes since 2000 have altered the landscape, and it is not clear that things will go as smoothly for the Supreme Court or the nation if the Court ends up in the position of determining the outcome of a presidential election again.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, Supreme Court<https://electionlawblog.org/?cat=29>


“2020’s first election security test: Iowa; The nation’s first caucuses Monday may be almost as low-tech as it gets, but it still faces threats from hackers.”<https://electionlawblog.org/?p=109279>
Posted on February 2, 2020 6:45 pm<https://electionlawblog.org/?p=109279> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico reports.<https://www.politico.com/news/2020/02/02/iowa-2020-election-security-110126>
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Posted in chicanery<https://electionlawblog.org/?cat=12>, election administration<https://electionlawblog.org/?cat=18>


“Revamp House’s election method? Consider the last Parliament vote.”<https://electionlawblog.org/?p=109277>
Posted on February 2, 2020 6:24 pm<https://electionlawblog.org/?p=109277> by Rick Hasen<https://electionlawblog.org/?author=3>

Kevin Johnson<https://thefulcrum.us/voting/how-britains-latest-vote-boosts-the-argument-for-revamping-u-s-elections>:

Our historical cousins in the United Kingdom vote much like we do — in single-member districts, under simple plurality rules — so their elections are worth paying attention to. This is particularly true now that “the duopoly,” the dominance of two parties characteristic of single-member-district systems, has become such a source of concern here in the United States.

The recent elections in the U.K. illustrate just how dominant a duopoly can be, even in a country with well-established third parties. More importantly, the elections illustrate that a new form of elections gaining prominence here, ranked-choice voting<http://thefulcrum.us/ranked-choice-voting>, will likely have only limited impact on reducing duopoly power, and that more significant reform means changing the single-member-district system itself, to the multimember approach called for in a bill before Congress dubbed the Fair Representation Act<https://www.fairvote.org/fair_rep_in_congress#why_we_need_the_fair_representation_act>.

Single-member districts make life difficult for alternative parties, even those with reasonable support nationwide. A party with, say, an environment-first agenda, or a moderate-centrist platform, could poll relatively well nationally but not have enough supporters in any given district to win elections.

This pattern is clear in the track record of Britain’s Liberal Democratic Party, which is the kind of centrist alternative often wished for in the United States. The Lib Dems have fielded candidates in most districts — or “constituencies” — for several decades and in 2010 entered government in coalition with the Conservative Party. What the Lib Dems have not been able to do is translate voter support efficiently into seats in Parliament. In the eight general elections since 1992, the Liberal Democrats’ 15 percent aggregate vote share has won only 5 percent of seats.

By contrast, in the same time period the two dominant parties have claimed more seats than their aggregate share of ballots: The Conservatives have taken 37 percent of the vote but won 42 percent of the seats, while Labor, with 36 percent of the vote, has gained 46 percent of the seats.

In the elections in December, the pattern intensified: The Lib Dems gained only 2 percent of seats despite receiving nearly 12 percent of the vote, and the Conservatives, with 44 percent of the vote, won an absolute majority of 55 percent in Parliament.

Here in America we don’t have the same range of parties — in part because our Congress is undersized, with only one-seventh the number of representatives per citizen as Britain. But we do have political groupings that have trouble gaining representation in proportion to their share of the population. This is true of course of ethnic minorities, and it’s also true of categories like rural populations, Republicans in New England, Democrats in the Great Plains and many others. Our country is a dense patchwork quilt of significant minorities covered over by the all-too-familiar swaths of red and blue, monochromatic blocks that fundamentally are rounding errors.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Arizona Asks 9th Circuit To Stay Its ‘Ballot Harvesting’ Ban Decision Pending Appeal To Supreme Court”<https://electionlawblog.org/?p=109275>
Posted on February 2, 2020 6:17 pm<https://electionlawblog.org/?p=109275> by Rick Hasen<https://electionlawblog.org/?author=3>

AZ Law reports.<https://arizonaslaw.blogspot.com/2020/01/update-arizona-will-appeal-to-us.html>

I expect <https://electionlawblog.org/?p=109166> the Supreme Court to get involved in short order.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


“The ‘Living Constitution’ Denied the Vote to Generations; If only late 19th-century courts had followed the original meaning of the 15th Amendment.”<https://electionlawblog.org/?p=109273>
Posted on February 2, 2020 5:54 pm<https://electionlawblog.org/?p=109273> by Rick Hasen<https://electionlawblog.org/?author=3>

Frank Scaturro WSJ oped.<https://www.wsj.com/articles/the-living-constitution-denied-the-vote-to-generations-11580674107?emailToken=bd094efe1055454f90f96bbe0d49f54f20UbUQ5Cxh1445BQlt04y/ZUFvdlgQ/W3+RnQVsH4EMvvch2RXJuxdyMYuy+5hi/BUUgKv/aTLRgtiLyDglUDMGR7+m5JwzJSXP17LlMExB6QLmWFvHhzlvU0P3tBEsz&reflink=article_copyURL_share>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


The Risk of Media Confusion About the Iowa Results<https://electionlawblog.org/?p=109268>
Posted on February 2, 2020 3:58 pm<https://electionlawblog.org/?p=109268> by Richard Pildes<https://electionlawblog.org/?author=7>

As if the Iowa caucuses were not confusing enough, the Democratic Party will report out three different measures of the result. But on top of that, the campaigns have an incentive to try to manipulate the perceptions of “the” result, because perceptions matter so heavily about Iowa’s first-in-the-nation test. The bottom-line result that matters in terms of actually winning convention delegates is the third of the three measures I’ll flag below. And this is the result the main media organizations are committed to reporting out.

BUT the risk in our social media age is that campaigns that do better with the first metric, for which unofficial results will be available before all three official results are reported together, will flood twitter and the blogs with the unofficial count on the first metric in an effort to convince the media that the “winner” in Iowa is whomever wins on that first metric — even though that person might not be the person who actually wins on what the candidates are actually competing for, which is delegates after the final votes have been calculated. Publicizing these initial counts prematurely on social media could actually affect the results themselves if those first-stage numbers come out while voters are still deciding who their second choices are at the “realignment” stage of the Iowa process.

I’ll just identify those three different metrics here, then send readers to the good explanation Elaine Kamarck (at Brookings, and an experienced DNC delegate) provides of how they work. I’ll include an excerpt from a Politico piece on the concerns about efforts by the campaigns to manipulate media and public perceptions of how has “won” Iowa. Let’s hope journalists understand all this before tomorrow evening.

The three different “results” that will come out of Iowa are:
·         The “first expression of presidential preference”
·         The “final expression of presidential preference”
·         The “state delegate equivalency”

Here<https://www.brookings.edu/blog/fixgov/2020/01/29/iowa-caucus-2020-a-guide-to-understanding-the-results/> is Elaine’s explanation of these different measures. And here is an excerpt from the Politico piece<https://www.politico.com/news/2020/02/02/berniesanders-campaigniowa-results-110318> on concerns the campaigns have about possible confusion and manipulation:

Sanders and his team have made clear their intention to tout the results of the first round of caucus voting Monday<https://apnews.com/43354ef73124d58d94ca434b9016b4a7>, even though the Iowa Democratic Party stresses that the only number that matters is the final delegate count.

Aides with two top-tier campaigns told POLITICO they worry the Sanders campaign or other pro-Sanders forces — which will be receiving unofficial precinct results from allies in real time — will disseminate that information through social media or publicly claim victory after the first vote, an act that could distort the eventual results in a variety of ways.

A claim of victory after the first vote could encourage supporters of weaker candidates to leave the caucuses early without realigning with another candidate. Or it could create an artificial bandwagon effect by encouraging some caucus-goers to jump to Sanders’ side under the belief that he will be the victor.

Either scenario stands to hurt the campaigns that are more reliant than Sanders on the realignment round that happens after the first preference vote is cast. During realignment, supporters of candidates who failed to hit a 15 percent threshold in the first vote are freed up to switch to another candidate.

Tensions about this are high. Consider this quote in the piece:

“Everybody is playing by one set of rules except for Bernie,” said an aide with one of the competing campaigns. “They don’t really care if they disrupt it. They hate the Democratic Party. They hated them from four years ago, and they hate them now.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Election Meltdown, Part 2: Paper jams, lost forms, and lost boxes—incompetence and elections.”<https://electionlawblog.org/?p=109266>
Posted on February 2, 2020 7:42 am<https://electionlawblog.org/?p=109266> by Rick Hasen<https://electionlawblog.org/?author=3>

You can listen to the second episode of the Election Meltdown podcast (in conjunction with Dahlia Lithwick and Slate Amicus) at this link.<https://slate.com/podcasts/amicus/2020/02/administrative-incompetence-undermines-elections> (Episode 1 is here.<https://megaphone.link/SLT6839728202>) This episode focuses on issues of election administration in Detroit, speaking to journalist Joel Kurth and Michigan Secretary of State Jocelyn Benson. (Slate Plus members can hear an extended interview with Benson here.<https://slate.com/podcasts/amicus/2020/02/election-meltdown-michigan>)

Episode 2 description:

In the second part of a special five-part series of Amicus, Dahlia Lithwick is joined by election law professor Rick Hasen to take a close look at what happened with Michigan’s failed recounts in 2016, exploring how small mistakes can cause big problems in elections, and why democratic areas seem much more prone to incompetence in election administration.

Rick Hasen’s new book Election Meltdown<http://www.amazon.com/dp/0300248199/?tag=slatmaga-20> forms the basis for this special series of Amicus.

Join Slate for the Election Meltdown live show<https://slate.com/live/amicus-live-w-dahlia-lithwick-andrew-gillum-and-more.html> on Feb. 19 in Washington.

Podcast production by Sara Burningham.
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Posted in election administration<https://electionlawblog.org/?cat=18>, Election Meltdown<https://electionlawblog.org/?cat=127>


--
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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