[EL] ELB News and Commentary 2/7/20

Fri Feb 7 08:38:41 PST 2020

My Wall Street Journal “Saturday Essay” Cover Story: “How to Prevent the Next Election Meltdown; As the Iowa fiasco suggests, the most likely reason that your 2020 vote may not be counted isn’t fraud, suppression or hacking—it’s incompetence”<https://electionlawblog.org/?p=109416>
Posted on February 7, 2020 8:36 am<https://electionlawblog.org/?p=109416> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://www.wsj.com/articles/how-to-prevent-the-next-election-meltdown-11581091661> as the Saturday Essay for the weekend Wall Street Journal. It begins:

Will your vote be fairly and accurately counted in the 2020 elections? It’s a question on a lot of people’s minds after this week’s fiasco in the Iowa Democratic caucuses, and it reminds us of a troubling fact: Nearly two decades after the Florida debacle over the 2000 presidential vote, too many places in the U.S. are still vulnerable to an election meltdown. Such anxieties add to well-founded concerns about the possibility of cyberattacks on our voting systems, by Russia or other malign actors. What’s worse, in today’s hyperpolarized, social-media-driven environment, such voting problems provide sensational grist for conspiracy theories that may further undermine Americans’ confidence in the fairness and accuracy of the 2020 elections.

Over the past decade, a familiar frame has developed in the contentious debate over voting rules: Republicans express concern about voter fraud and enact laws supposedly intended to combat it; Democrats see these laws as an attempt to suppress Democratic votes, press for measures to expand voting access and rights, and worry about cyberattacks intended to help the GOP at the polls. It is an important debate, in which I have taken part<https://talkingpointsmemo.com/cafe/how-the-trump-administrations-attempt-to-perpetuate-the-voter-fraud-failed-miserably?mod=article_inline>, but it misses a deeper, more urgent reality: Most American voters in 2020 are much more likely to be disenfranchised by an incompetent election administrator than by fraud, suppression or Russian hacking.

While most election officials who set the rules and count the votes do a good job, often under serious budget constraints, we cannot ignore the weakest links in the chain: those bureaucrats who increase the chances of a protracted and divisive 2020 election meltdown. Fortunately, it is not too late to take steps to try to fix the problems.
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Posted in election administration<https://electionlawblog.org/?cat=18>, Election Meltdown<https://electionlawblog.org/?cat=127>

“Investigations Into 2020 Candidates Must Be Cleared by Top Justice Dept. Officials”; Is The Memo Also Going to Bar Campaign Finance Investigation?<https://electionlawblog.org/?p=109414>
Posted on February 7, 2020 8:33 am<https://electionlawblog.org/?p=109414> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT with big news<https://www.nytimes.com/2020/02/05/us/politics/barr-2020-investigations.html>:

Attorney General William P. Barr issued new restrictions on Wednesday over the opening of politically sensitive investigations, an effort meant to avoid upending the presidential election as the F.B.I. inadvertently did in 2016 when its campaign inquiries shaped the outcome of the race<https://www.nytimes.com/2017/04/22/us/politics/james-comey-election.html>.

The order by Mr. Barr, announced in a memo reviewed by The New York Times, comes after a scathing report by the inspector general<https://www.nytimes.com/2019/12/11/us/politics/fisa-surveillance-fbi.html> that showed how F.B.I. agents did not follow protocols and falsified information in their bid to investigate Carter Page, a former Trump campaign associate.

The memo, which said the Justice Department had a duty to ensure that elections are “free from improper activity or influences,” was issued on the same day that President Trump was acquitted<https://www.nytimes.com/2020/02/05/us/politics/impeachment-vote.html> on charges that he had abused his office to push a foreign power to publicly announce investigations into his political rivals. The memo said that the F.B.I. and all other divisions under the department’s purview must get Mr. Barr’s approval before investigating any of the 2020 presidential candidates.

Marcy Wheeler<https://www.emptywheel.net/2020/02/07/the-real-news-in-bill-barrs-announcement-hes-vetoing-campaign-finance-investigations-too/> makes the case that this extends to campaign finance investigations.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“New Doubts From Iowa Caucuses: How ‘Satellite’ Votes Are Being Measured Party documents lay out conflicting ways to award delegates, and the contest is so close that the small difference matters a lot.”<https://electionlawblog.org/?p=109412>
Posted on February 7, 2020 8:24 am<https://electionlawblog.org/?p=109412> by Rick Hasen<https://electionlawblog.org/?author=3>

Read this NYT column <https://www.nytimes.com/2020/02/06/upshot/iowa-caucus-satellite-votes.html> from Nate Cohn and then this tweet<https://twitter.com/Nate_Cohn/status/1225604510296477696>:
[cid:image002.jpg at 01D5DD91.FF019D70]<https://twitter.com/Nate_Cohn>
<https://twitter.com/Nate_Cohn>
Nate Cohn<https://twitter.com/Nate_Cohn>
✔@Nate_Cohn<https://twitter.com/Nate_Cohn>

 · 14h<https://twitter.com/Nate_Cohn/status/1225603454296633344>
<https://twitter.com/Nate_Cohn/status/1225603454296633344>

Replying to @Nate_Cohn<https://twitter.com/_/status/1225599591195848706>

As an aside, we've given them a full list of the precincts involved here and they're still putting it out
[cid:image002.jpg at 01D5DD91.FF019D70]<https://twitter.com/Nate_Cohn>
<https://twitter.com/Nate_Cohn>
Nate Cohn<https://twitter.com/Nate_Cohn>
✔@Nate_Cohn<https://twitter.com/Nate_Cohn>

I suspect I can say this without crossing the line into opinion: this is the worst conceived and executed electoral contest I have ever seen
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Rendell: Gov. Wolf must act now to keep Pa. from repeating Iowa’s election ‘fiasco’”<https://electionlawblog.org/?p=109410>
Posted on February 7, 2020 8:15 am<https://electionlawblog.org/?p=109410> by Rick Hasen<https://electionlawblog.org/?author=3>

See here.<https://www.goerie.com/news/20200206/rendell-gov-wolf-must-act-now-to-keep-pa-from-repeating-iowas-election-fiasco>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“The last thing Arizona needs is last-minute election law changes. Here’s why”<https://electionlawblog.org/?p=109408>
Posted on February 7, 2020 8:13 am<https://electionlawblog.org/?p=109408> by Rick Hasen<https://electionlawblog.org/?author=3>

Arizona SOS Katie Hobbs has written this oped <https://www.azcentral.com/story/opinion/op-ed/2020/02/06/no-last-minute-changes-arizona-2020-election-law/4647646002/> for the Arizona Republic.
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Posted in election administration<https://electionlawblog.org/?cat=18>

“Tom Perez says he wasn’t calling for a statewide recanvass after all.”<https://electionlawblog.org/?p=109406>
Posted on February 7, 2020 8:11 am<https://electionlawblog.org/?p=109406> by Rick Hasen<https://electionlawblog.org/?author=3>

It’s like<https://www.nytimes.com/live/2020/iowa-caucus-nh-primary-02-06#tom-perez-surgical> the Bad News Bears.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Analysis: Messing with elections messes with democracy”<https://electionlawblog.org/?p=109404>
Posted on February 7, 2020 8:02 am<https://electionlawblog.org/?p=109404> by Rick Hasen<https://electionlawblog.org/?author=3>

Ross Ramsey<https://www.texastribune.org/2020/02/07/messing-elections-messes-democracy/> Texas Tribune column, discussing 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>:

Elections depend on trust — on the idea that the declared winners and losers were the real winners and losers.

So how’s that going right now?

“In a democracy, people have to have faith that elections are being run fairly, so that losers will accept the results and fight another day,” says Rick Hasen, an elections lawyer and professor at the University of California-Irvine. “That’s been taken for granted in this country and, effectively, no longer can be, with so much stress on our system and so much agitation that undermines confidence.”

He’s written a book — “Election Meltdown: Dirty Tricks, Distrust and the Threat to American Democracy” — that went public Tuesday. That’s the day the Iowa caucuses started coming to pieces.

“Confidence is the system,” Hasen says. “We don’t have a single election system. We have all of these pieces that fit together so that there’s legitimacy to the process. At some point, that can break down and you could have a substantial number of people who say, ‘This is broken, and I don’t believe this was a fair election.’ That’s what I’m really worried about.”…

The book makes some recommendations about shorter- and longer-term solutions, and Hasen had a hard time with this year’s elections. “The short-term stuff is where I struggled the most, and I’m actually convening a conference of leading experts in law, media, tech and politics to ask what those triage steps might be,” Hasen said. That livestreamed conference — “Can American Democracy Survive the 2020 Elections?<https://www.law.uci.edu/events/election-law/election-2020/>” — will be at the end of the month, and he said he hopes it will result in a report “about things that should be done” by early summer.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

“Brennan Center Publishes New Guide to Designing Voter-Friendly Ballots”<https://electionlawblog.org/?p=109402>
Posted on February 7, 2020 7:53 am<https://electionlawblog.org/?p=109402> by Rick Hasen<https://electionlawblog.org/?author=3>

Release.<https://www.brennancenter.org/our-work/analysis-opinion/brennan-center-publishes-new-guide-designing-voter-friendly-ballots>
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Posted in election administration<https://electionlawblog.org/?cat=18>

“The Cybersecurity 202: Senate panel wants politicians to put party aside for election security. Fat chance in 2020.”<https://electionlawblog.org/?p=109400>
Posted on February 7, 2020 7:52 am<https://electionlawblog.org/?p=109400> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2020/02/07/the-cybersecurity-202-senate-panel-wants-politicians-to-put-party-aside-for-election-security-fat-chance-in-2020/5e3c78fe602ff15f8279b69f/>

A long-awaited Senate Intelligence Committee report admonishes politicians to forget about politics when dealing with election interference operations and to exercise maximum restraint before suggesting an election was hacked or corrupted.

Good luck with that.

“Restraint” is not the operative word in the Trump era. The bipartisan report<https://www.intelligence.senate.gov/sites/default/files/documents/Report_Volume3.pdf> arrived just days after President Trump’s 2020 campaign manager Brad Parscale suggested without evidence on Twitter<https://twitter.com/parscale/status/1224533010890002434> that a long delay in reporting Iowa caucuses results was because of a #RiggedElection. In fact, the count was marred by technical issues<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2020/02/04/the-cybersecurity-202-iowa-caucus-debacle-shakes-public-confidence-in-2020-security/5e385fcd88e0fa7f82543738/>.

And while the Republican-run committee states “the President of the United States should take steps to separate himself or herself from political considerations when handling issues related to foreign influence operations,” Trump has not been living by that mantra. Nor has he been “explicitly putting aside politics when addressing the American people on election threats.” …

A separate addendum from Sen. Ron Wyden (D-Ore.) knocks the Obama administration for not informing lawmakers and the public more quickly about the scope and scale of Russian activities.

The full report stops short of faulting the Obama administration for that but warns that in future interference campaigns the public should be notified as quickly as possible.
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Posted in chicanery<https://electionlawblog.org/?cat=12>

“Californians who register to vote would be required to cast ballots under new bill”; Good or Bad Idea, I Believe It is Constitutional<https://electionlawblog.org/?p=109398>
Posted on February 7, 2020 7:46 am<https://electionlawblog.org/?p=109398> by Rick Hasen<https://electionlawblog.org/?author=3>

John Myers reports<https://www.latimes.com/california/story/2020-02-05/california-lawmaker-proposes-mandatory-voting> for the Los Angeles Times.

Whether or not one agrees with mandatory voting as policy, I do not believe it violates the First Amendment’s right to free speech, as the article suggests opponents imply.

A mandatory voting law does not require voting; one need only show up at the polls and can cast a blank ballot.

I explain all of this in a 1996 Penn Law Review article, Voting without Law<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1314963>?
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Posted in voting<https://electionlawblog.org/?cat=31>

“GOP-affiliated group intervenes in Democratic primary for US Senate seat in North Carolina”<https://electionlawblog.org/?p=109396>
Posted on February 7, 2020 7:42 am<https://electionlawblog.org/?p=109396> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN<https://www.cnn.com/2020/02/05/politics/north-carolina-republican-democratic-primary>:

The first significant ad buy for state Sen. Erica Smith, a Democratic candidate for US Senate in North Carolina<https://www.cnn.com/2020/02/05/politics/thom-tillis-opposes-impeachment-reelection/index.html>, appears to be backed by Republicans.

Faith and Power, a new political action committee with ties to Republicans, formally launched on January 29 and spent more than $1.9 million to influence the Democratic primary, according to filings with the Federal Election Commission and the Kantar Media’s Campaign Media Analysis Group.

The television and radio ads aims to boost Smith over Cal Cunningham, who has been endorsed by the Democratic Senatorial Campaign Committee and has raised significantly more money.”Who’s the Democrat for US Senate endorsed by progressives and unions? Erica Smith,” says the ad’s narrator.

“Who’s got the courage to vote for ‘Medicare for All’? Erica Smith. The number one supporter of the Green New Deal? Erica Smith again.””Erica Smith is one of us — a high school educator, engineer, state senator and ordained minister,” adds the narrator. “Vote Democrat Erica Smith for US Senate, the only proven progressive.”
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Posted in campaigns<https://electionlawblog.org/?cat=59>

FEC Commissioner Hunter Responds to Prof. Torres-Spelliscy’s Testimony About the FEC and the Foreign Money Ban<https://electionlawblog.org/?p=109394>
Posted on February 7, 2020 7:32 am<https://electionlawblog.org/?p=109394> by Rick Hasen<https://electionlawblog.org/?author=3>

Dave Levinthal:<https://twitter.com/davelevinthal/status/1225628827487023104>
[cid:image003.png at 01D5DD91.FF019D70]<https://twitter.com/davelevinthal>
<https://twitter.com/davelevinthal>
Dave Levinthal<https://twitter.com/davelevinthal>
✔@davelevinthal<https://twitter.com/davelevinthal>

<https://twitter.com/davelevinthal/status/1225628827487023104>

1/ NEW: Following today's House Judiciary subcommittee hearing on campaign finance, @FEC<https://twitter.com/FEC> Chair Caroline Hunter sends pointed letter to @ProfCiara<https://twitter.com/ProfCiara> regarding her testimony about foreign spending in U.S. elections.
[View image on Twitter]<https://twitter.com/davelevinthal/status/1225628827487023104/photo/1>[View image on Twitter]<https://twitter.com/davelevinthal/status/1225628827487023104/photo/1>[View image on Twitter]<https://twitter.com/davelevinthal/status/1225628827487023104/photo/1>[View image on Twitter]<https://twitter.com/davelevinthal/status/1225628827487023104/photo/1>
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, federal election commission<https://electionlawblog.org/?cat=24>

Washington Examiner Newspaper Sells Its Mailing List to Trump Campaign/RNC For Fundraising Blast, Then Writes Article About Blast Without Revealing This Fact<https://electionlawblog.org/?p=109392>
Posted on February 7, 2020 7:25 am<https://electionlawblog.org/?p=109392> by Rick Hasen<https://electionlawblog.org/?author=3>

Dave Levinthal thread<https://twitter.com/davelevinthal/status/1225793021284888577> starts here:
[cid:image003.png at 01D5DD91.FF019D70]<https://twitter.com/davelevinthal>
<https://twitter.com/davelevinthal>
Dave Levinthal<https://twitter.com/davelevinthal>
✔@davelevinthal<https://twitter.com/davelevinthal>

<https://twitter.com/davelevinthal/status/1225793021284888577>

1/ A short thread about a news organization, the Trump campaign and a fundraising message ...

On Thursday, my colleague @JimSmall<https://twitter.com/JimSmall> received a garden variety campaign solicitation from the Trump Make America Great Again Committee, a joint venture of the Trump campaign and RNC.
[View image on Twitter]<https://twitter.com/davelevinthal/status/1225793021284888577/photo/1>[View image on Twitter]<https://twitter.com/davelevinthal/status/1225793021284888577/photo/1>[View image on Twitter]<https://twitter.com/davelevinthal/status/1225793021284888577/photo/1>
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>

“Judge: Alabama’s method of electing appellate judges not discriminatory”<https://electionlawblog.org/?p=109390>
Posted on February 6, 2020 4:09 pm<https://electionlawblog.org/?p=109390> by Rick Hasen<https://electionlawblog.org/?author=3>

AL.com<https://www.al.com/politics/2020/02/judge-alabamas-method-of-electing-appellate-judges-not-discriminatory.html>:

Alabama’s method of electing appellate judges does not dilute the voting power of blacks, a Montgomery federal judge ruled<https://go.skimresources.com/?id=126006X1587343&isjs=1&jv=13.26.2-stackpath&sref=https%3A%2F%2Fwww.al.com%2Fpolitics%2F2020%2F02%2Fjudge-alabamas-method-of-electing-appellate-judges-not-discriminatory.html&url=https%3A%2F%2Fwww.scribd.com%2Fdocument%2F445798392%2FAlabama-NAACP-v-Alabama-dct-Opinion%23from_embed&xguid=&xs=1&xtz=480&xuuid=eaf423da0b77ea158448c3a986d53c85> Wednesday in a case brought against the state by the Alabama NAACP.

The group contended that Alabama’s at-large elections of appellate judges – instead of electing the judges by districts – disenfranchises black voters and is the reason why there have been no black state appellate civil and criminal judges and only three African-American judges on the Alabama Supreme Court in the last 36 years.
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Posted in judicial elections<https://electionlawblog.org/?cat=19>, Voting Rights Act<https://electionlawblog.org/?cat=15>

AP Unable to Call Winner in Iowa Democratic Caucus Due to Closeness and “Irregularities”<https://electionlawblog.org/?p=109388>
Posted on February 6, 2020 3:51 pm<https://electionlawblog.org/?p=109388> by Rick Hasen<https://electionlawblog.org/?author=3>

Wow<https://apnews.com/4f9044fe46f551d397d48dd8ca3d58db?utm_medium=AP_Politics&utm_campaign=SocialFlow&utm_source=Twitter>, it’s this bad:

“The Associated Press calls a race when there is a clear indication of a winner. Because of a tight margin between former Mayor Pete Buttigieg and Sen. Bernie Sanders and the irregularities in this year’s caucus process, it is not possible to determine a winner at this point,” said Sally Buzbee, AP’s senior vice president and executive editor.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Audio and Transcript of Brennan Center Event: “A Warning from Iowa; Legal expert Richard L. Hasen discusses ways to prevent election meltdowns in 2020.”<https://electionlawblog.org/?p=109386>
Posted on February 6, 2020 3:29 pm<https://electionlawblog.org/?p=109386> by Rick Hasen<https://electionlawblog.org/?author=3>

You can listen and read here<https://www.brennancenter.org/our-work/research-reports/warning-iowa?utm_source=twitter&utm_medium=socialmedia>. Thanks to Victoria Bassetti for serving as a great moderator and for the Brennan Center for hosting.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

Rep. (and Election Law Prof) Jamie Raskin Thanks All the “Natural Persons” Who Attended House Judiciary Subcommittee Hearing on the 10th Anniversary of Citizens United<https://electionlawblog.org/?p=109384>
Posted on February 6, 2020 3:06 pm<https://electionlawblog.org/?p=109384> by Rick Hasen<https://electionlawblog.org/?author=3>

LOL. Watch here<https://www.youtube.com/watch?v=ZdJpqpYMnOM&feature=youtu.be&t=5710>:
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Posted in campaign finance<https://electionlawblog.org/?cat=10>

New Brennan Center Resource: Voting Rights Roundup 2020<https://electionlawblog.org/?p=109382>
Posted on February 6, 2020 10:59 am<https://electionlawblog.org/?p=109382> by Rick Hasen<https://electionlawblog.org/?author=3>

Very useful<https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-2020> and to be updated quarterly.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

DNC Chair Calls for Iowa Democratic Party Recanvass; What Should Happen Now<https://electionlawblog.org/?p=109379>
Posted on February 6, 2020 9:55 am<https://electionlawblog.org/?p=109379> by Rick Hasen<https://electionlawblog.org/?author=3>

Me<https://twitter.com/rickhasen/status/1225477789429559296> on Twitter, responding to Tom Perez:
[cid:image011.png at 01D5DD91.FF019D70]<https://twitter.com/rickhasen>
<https://twitter.com/rickhasen>
Rick Hasen<https://twitter.com/rickhasen>
✔@rickhasen<https://twitter.com/rickhasen>

<https://twitter.com/rickhasen/status/1225477789429559296>

1. Don't let political parties run caucuses anymore.
2. If an entity running an election makes a mistake, own up to it, be transparent
3. Don't release final results until you are absolutely sure they're accurate.
4. Explain exactly what happened and steps to prevent recurrence. https://twitter.com/TomPerez/status/1225468833458245632 …<https://t.co/GkSgBZY6y1>
<https://twitter.com/TomPerez/status/1225468833458245632>
Tom Perez<https://twitter.com/TomPerez/status/1225468833458245632>
✔@TomPerez<https://twitter.com/TomPerez/status/1225468833458245632>

Enough is enough. In light of the problems that have emerged in the implementation of the delegate selection plan and in order to assure public confidence in the results, I am calling on the Iowa Democratic Party to immediately begin a recanvass.<https://twitter.com/TomPerez/status/1225468833458245632>

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131<https://twitter.com/intent/like?tweet_id=1225477789429559296>
9:54 AM - Feb 6, 2020<https://twitter.com/rickhasen/status/1225477789429559296>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
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44 people are talking about this<https://twitter.com/rickhasen/status/1225477789429559296>

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

Democrats Have Raised Close to a Quarter Billion Dollars from Small Donors<https://electionlawblog.org/?p=109377>
Posted on February 6, 2020 9:46 am<https://electionlawblog.org/?p=109377> by Richard Pildes<https://electionlawblog.org/?author=7>

By my calculation, based on the latest FEC filings, the Democratic presidential candidates have raised already nearly $250 million from small donors in this election cycle. Small donors, defined as those giving less than $200, are listed as “unitemized contributors” in these reports. That is a stunning figure, which shows how the internet is dramatically changing the nature of political fundraising.
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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>
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