[EL] ELB News and Commentary 2/10/20
Rick Hasen
rhasen at law.uci.edu
Sun Feb 9 20:58:59 PST 2020
“How the Iowa Caucuses Became an Epic Fiasco for Democrats”<https://electionlawblog.org/?p=109462>
Posted on February 9, 2020 8:56 pm<https://electionlawblog.org/?p=109462> by Rick Hasen<https://electionlawblog.org/?author=3>
NYT deep dive:<https://www.nytimes.com/2020/02/09/us/politics/iowa-democratic-caucuses.html>
The fragile edifice of the caucuses, which demoralized Democrats in search of a strong nominee to take on President Trump, crumbled under the weight of technology flops, lapses in planning, failed oversight by party officials, poor training, and a breakdown in communication between paid party leaders and volunteers out in the field, who had devoted themselves for months to the nation’s first nominating contest.
The wider scope of the malfunctions came to light partly because of a new set of reporting requirements, mandated by the Democratic National Committee after allies of Senator Bernie Sanders of Vermont pushed the national party to demand more transparency following his narrow loss to Hillary Clinton in the 2016 Iowa caucuses.
The widespread lack of faith in the Iowa results has shaken many Americans’ confidence in their electoral system. Mr. Trump has reveled in the meltdown<https://www.nytimes.com/2020/02/04/us/politics/trump-iowa-caucus.html>. Democrats have proposed abolishing caucuses and ending Iowa’s time at the front of the presidential nominating calendar.
Even as party officials scramble to contain the fallout, the full extent of the problems in Iowa is still not known.
An analysis by The New York Times revealed inconsistencies in the reported data for at least one in six of the state’s precincts. Those errors occurred at every stage of the tabulation process: in recording votes, in calculating and awarding delegates, and in entering the data into the state party’s database. Hundreds of state delegate equivalents, the metric the party uses to determine delegates for the national convention, were at stake in these precincts….
By then, it was clear that a catastrophe was taking place at the Iowa Events Center, a venue for auto shows and state wrestling tournaments that was serving as caucus central.
The state party’s phones were jammed. Users on the website 4chan had publicly posted the election hotline number and encouraged one another to “clog the lines.” The party’s volunteer phone operators also had to deflect calls from television news reporters in search of caucus results that were hours overdue….
Each precinct leader had 36 separate figures to report, along with two separate six-digit verification numbers — and there were more than 1,700 precincts, including the satellites.
In the chaos, caucus results collected by phone operators were riddled with errors. Dozens of the volunteers returned over the next three days to crosscheck them and input results from caucus worksheets that came in by email or through the app. One was delivered days later by the Postal Service.
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Posted in election administration<https://electionlawblog.org/?cat=18>, Election Meltdown<https://electionlawblog.org/?cat=127>
“What Happens When QAnon Seeps From the Web to the Offline World”<https://electionlawblog.org/?p=109460>
Posted on February 9, 2020 8:50 pm<https://electionlawblog.org/?p=109460> by Rick Hasen<https://electionlawblog.org/?author=3>
NYT<https://www.nytimes.com/2020/02/09/us/politics/qanon-trump-conspiracy-theory.html>:
What began online more than two years ago as an intricate, if baseless, conspiracy theory that quickly attracted thousands of followers has since found footholds in the offline world. QAnon has surfaced in political campaigns, criminal cases, merchandising and at least one college class. Last month, hundreds of QAnon enthusiasts gathered in a Tampa, Fla., park <https://www.tampabay.com/news/tampa/2020/01/16/qanon-conspiracy-theorists-find-kinship-on-the-tampa-riverwalk/> to listen to speakers and pick up literature, and in England, a supporter of President Trump and the Brexit leader Nigel Farage raised a “Q” flag<https://www.theguardian.com/politics/2020/jan/11/trum-and-farage-supporter-flies-flag-for-qanon-rar-right-conspiracy> over a Cornish castle.
Most recently, the botched Iowa Democratic caucuses and the coronavirus outbreak have provided fodder for conspiracy mongering: QAnon fans shared groundless theories<https://twitter.com/Qanon76/status/1225119153243201537> online linking the liberal billionaire George Soros to technological problems that hobbled the caucuses, and passed around bogus and potentially dangerous “treatments” for the virus.
About a dozen candidates for public office in the United States have promoted or dabbled in QAnon, and its adherents have been arrested in at least seven episodes, including a murder in New York and an armed standoff with the police near the Hoover Dam. The F.B.I. cited QAnon in an intelligence bulletin last May about the potential for violence motivated by “fringe political conspiracy theories.”<https://news.yahoo.com/fbi-documents-conspiracy-theories-terrorism-160000507.html>
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Posted in social media and social protests<https://electionlawblog.org/?cat=58>
Part of Trump Reelection Strategy: Depress Turnout (Per Maggie Haberman)<https://electionlawblog.org/?p=109458>
Posted on February 9, 2020 8:47 pm<https://electionlawblog.org/?p=109458> by Rick Hasen<https://electionlawblog.org/?author=3>
Haberman tweet:<https://twitter.com/maggieNYT/status/1226576181308350464>
[cid:image002.jpg at 01D5DF8B.BF346D70]<https://twitter.com/maggieNYT>
<https://twitter.com/maggieNYT>
Maggie Haberman<https://twitter.com/maggieNYT>
✔@maggieNYT<https://twitter.com/maggieNYT>
<https://twitter.com/maggieNYT/status/1226576181308350464>
Not in our story, but the president and his aides are looking to either win back or * neutralize * voters who turned out in 2018. Depressed turnout was a factor in 2016. If they can’t make Trump appealing, they’ll try to make the Dem equally unappealing. https://www.nytimes.com/2020/02/08/us/politics/trump-reelection-campaign.html …<https://t.co/qPvUNG7wFt>
<https://t.co/qPvUNG7wFt>
[President Trump on Friday in North Carolina. Mr. Trump’s campaign is trying to address his re-election bid’s greatest weaknesses by targeting suburban voters with ads and policy priorities.]<https://t.co/qPvUNG7wFt>
On Trump’s To-Do List: Take Back The Suburbs. Court Black Voters. Expand the Electoral Map. Win.<https://t.co/qPvUNG7wFt>
With impeachment behind the president, his re-election campaign wants to address political weaknesses exacerbated by his policies and behavior.<https://t.co/qPvUNG7wFt>
nytimes.com<https://t.co/qPvUNG7wFt>
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10:38 AM - Feb 9, 2020<https://twitter.com/maggieNYT/status/1226576181308350464>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Iowa Democratic Party projects Pete Buttigieg the winner of the delegate race, with Bernie Sanders preparing a challenge”<https://electionlawblog.org/?p=109455>
Posted on February 9, 2020 8:42 pm<https://electionlawblog.org/?p=109455> by Rick Hasen<https://electionlawblog.org/?author=3>
WaPo<https://www.washingtonpost.com/politics/iowa-democratic-party-projects-pete-buttigieg-the-winner-of-the-delegate-race-with-bernie-sanders-preparing-a-challenge/2020/02/09/9d7082e0-4b98-11ea-bf44-f5043eb3918a_story.html>:
The update from the state party reflected its review of 55 precincts, making up about 3 percent of the total 1,765. But the review involved only rectifying discrepancies between numbers reported on math worksheets completed by caucus leaders and publicly reported data. That left untouched errors tainting the actual worksheets, where volunteer leaders had entered complex calculations based on multiple counts of caucus-night preferences — and, in some cases, made mistakes.
An attorney for the state party said officials were not authorized to alter the worksheets because they represented legal documents, according to an email Troy Price, the state party chairman, sent to members of the state party’s central committee.
“It is the legal voting record of the caucus, like a ballot,” Shayla McCormally, the attorney, wrote in an advisory included in the email from Price. “The seriousness of the record is made clear by the language at the bottom stating that any misrepresentation of the information is a crime. Therefore, any changes or tampering with the sheet could result in a claim of election interference or misconduct.”AD
She added that any interference to rectify arithmetic errors would introduce “personal opinion” into the caucus process, which involves caucus-goers arranging themselves into different groupings and then realigning if certain candidates don’t achieve a baseline level of support.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“After the meltdown at the Iowa caucuses, Democrats fear a repeat in Nevada”<https://electionlawblog.org/?p=109453>
Posted on February 9, 2020 8:38 pm<https://electionlawblog.org/?p=109453> by Rick Hasen<https://electionlawblog.org/?author=3>
WaPo reports.<https://www.washingtonpost.com/politics/after-the-meltdown-at-the-iowa-caucuses-democrats-fear-a-repeat-in-nevada/2020/02/08/541e63ac-4aa6-11ea-9164-d3154ad8a5cd_story.html>
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Posted in election administration<https://electionlawblog.org/?cat=18>, political parties<https://electionlawblog.org/?cat=25>, primaries<https://electionlawblog.org/?cat=32>
“Florida Voted to Give 1.4 Million Felons the Right to Vote. It Hasn’t Gone Smoothly”<https://electionlawblog.org/?p=109451>
Posted on February 9, 2020 8:19 pm<https://electionlawblog.org/?p=109451> by Rick Hasen<https://electionlawblog.org/?author=3>
WSJ:<https://www.wsj.com/articles/florida-voted-to-give-1-4-million-felons-the-right-to-vote-it-hasnt-gone-smoothly-11581174000?shareToken=stdedaca5b506043beb332462324bf9601>
More than a year after Florida voters approved a constitutional amendment restoring voting rights to an estimated 1.4 million people with felony convictions, widespread confusion surrounds its implementation.
A law aimed at carrying out the amendment has sparked legal battles that remain unresolved, the state has provided little guidance to local elections officials, and some counties are filling the void with inconsistent remedies. Many people with felony records say they aren’t sure how to meet requirements they face and fear running afoul of the law by registering to vote.
Amid the uncertainty, a Feb. 18 deadline is approaching to register to vote in the March 17 presidential primary in Florida, a critical swing state known for close elections.
“It is a confusing, Byzantine morass,” said Myrna Pérez, director of the Voting Rights and Elections Program at the Brennan Center for Justice, which sued the state over the issue.
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Posted in felon voting<https://electionlawblog.org/?cat=66>
“Assessing the Validity of an Election’s Result: History, Theory, and Present Threats”<https://electionlawblog.org/?p=109449>
Posted on February 9, 2020 8:12 pm<https://electionlawblog.org/?p=109449> by Rick Hasen<https://electionlawblog.org/?author=3>
Ned Foley has posted this timely draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3535185> on SSRN. Here is the abstract:
In the wake of President Trump’s acquittal in the Senate impeachment trial, the United States will need to hold a presidential election in unprecedented circumstances. Never before has an incumbent president run for reelection after the opposing party in Congress has declared that the fairness of the election cannot be “assured” as long as the incumbent is permitted on the ballot. This uniquely acute challenge to holding an election that the public will accept as valid follows other stresses to electoral legitimacy unseen before 2016. The Russian attack on the election that year caused Americans to question their capacity to hold free and fair elections in a way that Americans had not questioned previously.
Given these challenges, this essay tackles the basic concept of what it means for the outcome of an election to be valid. It turns out that, because of the way American history has unfolded, this basic concept is contested now although it had been settled previously. Current circumstances require renewing a shared conception of electoral validity. Otherwise, participants in electoral competition—winners and losers alike—cannot know whether or not the result qualifies as authentically democratic. Accordingly, after reviewing the history that has led to the present difficulties, this essay offers a renewed conception of electoral validity and both explains the theoretical basis for this renewed conception and then applies it to some of the most salient threats to electoral validity that are foreseeable in this year’s and future elections.
In brief, the proposed standard of electoral validity distinguishes sharply between (1) direct attacks on the electoral process that negate voter choice and (2) indirect attacks that improperly manipulate voter choice. Direct attacks undermine electoral validity, whereas indirect attacks do not. It is essential, however, that the category of direct attacks encompasses the disenfranchisement of eligible voters, which prevents them from casting a ballot, as well as the falsification of votes reported in the tallies of counted ballots.
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Posted in election administration<https://electionlawblog.org/?cat=18>
Options for Avoiding a NV Caucus Meltdown<https://electionlawblog.org/?p=109441>
Posted on February 9, 2020 10:25 am<https://electionlawblog.org/?p=109441> by Richard Pildes<https://electionlawblog.org/?author=7>
In the next few days, the Democratic Party in Nevada and nationally faces an urgent and difficult choice. In an admirable desire to expand access to the caucuses, four days of early voting for the NV caucuses are scheduled to begin this Saturday. But to integrate this early-voting system with the actual caucuses, the Nevada Democratic Party (NDP) had planned to rely on the same newly created app that imploded in the Iowa caucuses. The question now becomes whether the NDP can patch together an 11th hour alternative that avoids the debacle of Iowa, or whether the Party must consider other, obviously uncomfortable options — such as cancelling early voting altogether.
The nominations process and the Democratic Party can ill-afford another meltdown in NV, which will further delegitimate the process, alienate voters, and raise yet more questions about the party’s competence. NV’s voting system for the caucuses is essentially the same, multi-round system that Iowa used. I believe 2020 is the first time NV has tried to incorporate early voting into this process. At around 80 early voting sites, voters are to fill out a ranked-choice ballot, ranking as many as five candidates in order of preference. In the four days between the end of early voting and the date of the actual caucuses, Feb. 22, the app was supposed to transfer all this information to the more than 2,000 precincts throughout the State. Then the precinct captains have to combine this data with the numbers at the caucus site to figure out, first, which candidates have crossed the line of “viability,” and second, to whom all the votes for candidates who are not viable should be redistributed during the adjustments that take place in the second round, as in Iowa.
Without the app to make this complex process work, the NDP is now scrambling to cobble together an alternative. But the NDP better be confident before Saturday it can come up with a solution here that will avoid the mess of Iowa. According to the Nevada Independent<https://thenevadaindependent.com/article/nevada-democrats-debut-to-volunteers-new-ipad-based-tool-to-calculate-math-on-caucus-day-in-the-wake-of-iowa-fiasco>, “Nevada Democrats are planning to use a new caucus tool that will be preloaded onto iPads and distributed to precinct chairs to help facilitate the Caucus Day process, according to multiple volunteers and a video recording of a volunteer training session on Saturday.” I am not on the ground in NV and don’t know whether the NDP can successfully pull off an 11th hour solution like this. But I do have experience with election administration, and there are good reasons to be concerned whether 2000 + precinct captains, many of whom will not be as technologically proficient as those developing these solutions, will be able to make this work. On top of that, the NDP is still in the process of recruiting precinct chairs and caucus volunteers, let alone training them on a last-minute new technological fix. Reading the rest of the Nevada Independent article isn’t promising on how this is going so far.
The number of Nevadans who will take advantage of early voting would of course affect how big of an administrative management issue will be faced. But in the last general elections in NV, more than 50% of voters voted early, consistent with high uptake rates for early voting in the Western states, in particular (for caucuses, I would expect a lower rate, but even at half that rate, that’s a lot of votes to process). Given the Democratic Party’s efforts to expand access and its commitment to early voting in general, I understand the desire to do everything possible to make early voting in NV work, despite the implosion of the Shadow Inc. app.
But the Party can’t get this decision wrong and should not engage in collective self-delusion about whether it can pull off a last-minute change to make the early voting process now work in NV. As noted above, the Party has to be confident it can do this in the next few days, before early voting begins. If there is not that level of confidence, then the NDP and the DNC should seriously consider other, uncomfortable options.
One option would be to cancel early voting, which as suggested above, has not been a feature of the NV caucuses before this year. That would obviously be a blow to the process and I suppose embarrassing to the Party, but the Party has to weigh those costs against a realistic assessment of the risks and costs of another election debacle. Another possible option might be to postpone the NV caucus for a week or more, but the campaigns have built all their efforts around these dates, and I would imagine postponement would be even more strongly resisted by the campaigns than cancelling early voting. A third option might be to permit early voters to vote for only one candidate rather than rank-order the candidates; this would simplify transferring early vote counts to the caucus precincts, but it would mean early voters and caucus voters would vote under two different voting rules and systems, with early voters denied the same ability to affect the outcome as caucus voters. As a matter of public legitimacy and perceptions of fairness, that might be hard to explain and justify.
The DNC cannot leave these choices to the NDP alone. There is too much at stake for the Party and the nominations process to let one state party make the wrong choice about how to handle the mess that’s been created by the failure of the app. Options like canceling early voting or postponing the caucus or changing the early-voting rules might well require formal approval by the DNC, in any event.
I don’t know what the right choice here is, because I don’t have all the relevant information. But I do know how psychological mechanisms of denial work, in institutions as well as individuals, and I hope the Party will engage in honest and sober discussion about how the NV caucuses can, after what we have “learned” from Iowa, best be brought to a successful conclusion.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Election Meltdown, Part 3 Delving into the big bag of dirty tricks ahead of the 2020 election.”<https://electionlawblog.org/?p=109438>
Posted on February 8, 2020 9:23 am<https://electionlawblog.org/?p=109438> by Rick Hasen<https://electionlawblog.org/?author=3>
You can listen to the third episode of the Election Meltdown podcast (in conjunction with Dahlia Lithwick and Slate Amicus) at this link<https://slate.com/podcasts/amicus/2020/02/dirty-tricks-to-disenfranchise-voters>. (Episode 1 on voter suppression/voter fraud is here<https://megaphone.link/SLT6839728202> and Episode 2 on election administrator incompetence (timely!) is here<https://slate.com/podcasts/amicus/2020/02/administrative-incompetence-undermines-elections>.) In this episode we talk with Joe Bruno, Danielle Citron, Renee DiResta and Brendan Nyhan about dirty tricks, ranging from Russian 2016, to Democrats’ activities in the 2017 U.S. Senate race in Alabama, to the ballot tampering the North Carolina’s 2018 congressional race in the Ninth district, to the potential for deepfakes to disrupt 2020. Plus an Iowa meltdown recap.
Episode Notes<https://slate.com/podcasts/amicus/2020/02/dirty-tricks-to-disenfranchise-voters>
In the third part of this special five-part series of Amicus, Dahlia Lithwick is joined by election law professor Rick Hasen to unpack the bag of dirty tricks that may be deployed in 2020’s election and to examine the debris of the Iowa caucus debacle to find clues to what’s coming.
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 chicanery<https://electionlawblog.org/?cat=12>, 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
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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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http://electionlawblog.org<http://electionlawblog.org/>
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