[EL] ELB News and Commentary 2/18/20

[Rick Hasen]

“NC Court of Appeals throws out voter photo ID for now, says law likely passed with discriminatory intent”<https://electionlawblog.org/?p=109601>
Posted on February 18, 2020 9:40 am<https://electionlawblog.org/?p=109601> by Rick Hasen<https://electionlawblog.org/?author=3>

NC Policy Watch:<http://pulse.ncpolicywatch.org/2020/02/18/nc-court-of-appeals-throws-out-voter-photo-id-for-now-says-law-likely-passed-with-discriminatory-intent/>

A three-judge North Carolina Court of Appeals panel has ruled unanimously that the state’s voter photo ID law will not stand pending a trial on the merits of the underlying lawsuit.

The 45-page ruling<https://www.documentcloud.org/documents/6779088-Voter-ID-Appeal-Ruling.html#document/p3>, written by Judge Toby Hampson with Judges John Arrowood and Allegra Collins concurring, states that the plaintiffs demonstrated they would likely succeed on their claims that the law, Senate Bill 824, is discriminatory and will cause irreparable harm. It also states that since the federal courts have already prevented the law from going into effect for the upcoming primary election, the decision to continue an injunction would prevent further voter confusion.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The new thing for California politicians? Sweet charity”<https://electionlawblog.org/?p=109599>
Posted on February 18, 2020 9:36 am<https://electionlawblog.org/?p=109599> by Rick Hasen<https://electionlawblog.org/?author=3>

Lauren Rosenhall<https://calmatters.org/projects/california-lawmaker-nonprofits-politics-charity-campaign-finance-foundation-dark-money/> for CalMatters:

In California, their numbers, as well as their donations, are surging. According to a CalMatters analysis, the number of nonprofits affiliated with California legislators or caucuses grew from at least three in 2010 to at least 12 last year, with total revenue of about $2.9 million.

Much of the money has come from corporations and unions with business before the Legislature, including oil, tobacco and other lobbies whose political contributions are officially or unofficially shunned by the member’s party. The upshot, experts say, is a monetary backchannel that, while legal and even sometimes beneficial, has also become an increasingly common way for politicians to raise and spend money outside the limits even of California’s tough regulations.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Kansas elections chief’s security plan causes local unease”<https://electionlawblog.org/?p=109597>
Posted on February 18, 2020 9:35 am<https://electionlawblog.org/?p=109597> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://www.yahoo.com/news/kansas-elections-chiefs-security-plan-164646361.html>

Kansas’ elections chief is pushing to make the state’s central voter registration database more secure by changing how counties tap into it, but some officials are nervous about what they see as a big project in a busy election year.

Secretary of State Scott Schwab has told county election officials that he wants them to use dedicated tablets, laptops or computers not linked to their counties’ networks to access the state’s voter registration database. He says Kansas is getting $8 million in federal election security funds that could be used to cover the costs.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Quasi Campaign Finance”<https://electionlawblog.org/?p=109594>
Posted on February 18, 2020 6:34 am<https://electionlawblog.org/?p=109594> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

I just posted this new article<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3540231>, which is forthcoming in the Duke Law Journal. It tackles what I call “quasi campaign finance” — money spent on non-electoral politics that nevertheless relies on an electoral connection to be effective. The abstract is below:

Say you’re wealthy and want to influence American politics. How would you do it? Conventional campaign finance—giving or spending money to sway elections—is one option. Lobbying is another. This Article identifies and explores a third possibility: quasi campaign finance, or spending money on non-electoral communications with voters that nevertheless rely on an electoral mechanism to be effective. Little is currently known about quasi campaign finance because no law requires its disclosure. But its use by America’s richest and politically savviest individuals—the Koch brothers, Michael Bloomberg, and the like—appears to be rising. It also seems to skew policy outcomes in the spenders’ preferred direction.

After introducing quasi campaign finance, the Article considers its legal status. Is it like ordinary campaign finance, in which case it could be regulated fairly extensively? Or is it like garden-variety political speech, rendering it presumptively unregulable? One argument for pairing quasi and regular campaign finance is that they share several features—who bankrolls them, the tactics they pay for, the reasons they work—and so may serve as substitutes. Another rationale for conflation is that they may both cause the same democratic injuries: corruption, the distortion of public opinion, and the misalignment of public policy. Pitted against these points is the slippery-slope objection: If quasi campaign finance may constitutionally be curbed, what political speech may not be?

Lastly, the Article suggests how quasi campaign finance should (assuming it actually may) be regulated. Limits on contributions and expenditures are unwise and probably unadministrable. Disclosure, though, is a necessity. The public should know who is trying to persuade it (and how). Even more promising is the public subsidization of quasi campaign finance. If every voter received a voucher for this purpose, then public funds might crowd out private capital, thus alleviating its harmful effects.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Political Brands by Prof. Torres-Spelliscy (Post 2 of 4)<https://electionlawblog.org/?p=109539>
Posted on February 18, 2020 6:00 am<https://electionlawblog.org/?p=109539> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is the second of four guest posts by Prof. Ciara Torres-Spelliscy<https://www.stetson.edu/law/faculty/torres-spelliscy-ciara/>, writing about her new book, Political Brands<https://play.google.com/store/books/details?pcampaignid=books_read_action&id=Jj-tDwAAQBAJ>.

Professor Hasen offered me the opportunity to excerpt my new book Political Brands<https://play.google.com/store/books/details?pcampaignid=books_read_action&id=Jj-tDwAAQBAJ> on ELB. My publisher Edward Elgar Publishing<https://www.e-elgar.com/shop/political-brands> gave me permission to excerpt the books introductory chapter “Branding Itself.” These excerpts have been edited for continuity.

What do survivors of a mass shooting in Florida, Russian intelligence officers, Coca-Cola and the president of the United States all have in common? They all try to influence public opinion using branding, even if what is getting branded is the truth, a lie, a myth or a conspiracy.

“Branding” is the process of purposefully repeating a word, concept or logo until it gets stuck in the minds of the public.  Commercial branding is ubiquitous.  Brands are so omnipresent in our lives that they sometimes slip into genericide. Linguists Julie Sedivy and Greg Carlson in Sold on Language, note how brands have become shorthand for objects in our daily lives:

If you stroll across your linoleum floor over to your formica countertop, check on the stew in the crock-pot, pick up the spilled kitty litter in the corner with a kleenex, pour a bowl of granola, and open your freezer to take out a popsicle before proposing a game of after-dinner ping pong, you are contributing to the genericide of these brand names.

Even as brands seep into our language, they are vulnerable to picking up negative associations and generating revulsion. As Professor Tamara Piety notes in Brandishing the First Amendment:

It is possible to create a brand out of whole cloth. However, because brand value is so dependent on imagery built by communication efforts, it is, to some extent, always susceptible to sudden shifts in public perceptions. Such shifts may include total collapse of all brand value.

Or as David D’Alessandro, president of John Hancock Mutual Life Insurance, once quipped: “It can take 100 years to build up a good brand and 30 days to knock it down.”  In the Twitter age, death of a brand can happen even quicker.

The word “brand” comes from the Old English word “brond,” meaning “fire.” Branding’s historical roots derive from farmers using a red-hot iron to sear an image, like the initials of the owner or a family crest, into the flesh of livestock.  This type of “branding” was a way of telling Farmer Joe’s cows from Farmer Steve’s cows. According to the Smithsonian, branding dates back to at least 2700 BC, where there is evidence of livestock branding depicted in ancient Egyptian hieroglyphics.

The meaning of “branding” has certainly evolved beyond marking livestock with hot irons. According to Mustafa Kurtuldu, “[t]he transition from ‘This belongs to me, so leave it. . . ’ to ‘This was made by me, so buy it’ started to evolve in the 1800’s.”  Commercial branding as Americans know the practice today took off as corporations tried to market what had been previously undistinguishable dry goods, like fungible piles of oats or beans.  The need for branding is most acute when the market is flooded with nearly indistinguishable and fungible goods. As Forbes once explained of Coke:

In the late 1880s… [b]efore Coca-Cola could get a customer to reach for a Coke, it needed to be sure the customer could distinguish a Coke from all the other fizzy caramel-colored beverages out there. . . A Coke is a fizzy caramel-colored soda concocted by those folks in Atlanta.

Coca-Cola was started as patent medicine that was advertised as “an ideal nerve tonic,” which contained wine and cocaine. After a local temperance law passed, later formulations of Coke changed to sugar and cocaine. Then finally Coca-Cola went with its modern formula of just sugar and caffeine.  In the 1800s, patent medicines were heavily advertised, including strange tinctures which claimed to be miracle cures for exhaustion and headaches. Often the main active ingredient was cocaine, just like the original Coca-Cola.  But the corporations making the patent medicines wanted consumers to buy their cocaine, not the other guy’s cocaine.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“How can the United States fix its democracy? Look to the north.”<https://electionlawblog.org/?p=109591>
Posted on February 17, 2020 10:43 am<https://electionlawblog.org/?p=109591> by Richard Pildes<https://electionlawblog.org/?author=7>

In this Washington Post piece<https://www.washingtonpost.com/opinions/2020/02/17/how-can-united-states-fix-its-democracy-look-north/> on how the Canadian system of elections is structured so differently from ours, I particularly enjoyed this line:

Contrary to the impulse of the uber-democrat who believes that democracy means chaining each element of the state to an elected office, the Canadian system recognizes that the further politicians are from the process of determining electoral boundaries, the more fair and legitimate elections will be.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Political Brands by Torres-Spelliscy (Post 1 of 4)<https://electionlawblog.org/?p=109537>
Posted on February 17, 2020 6:00 am<https://electionlawblog.org/?p=109537> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is the first of four guest posts by Prof. Ciara Torres-Spelliscy<https://www.stetson.edu/law/faculty/torres-spelliscy-ciara/>, writing about her new book, Political Brands<https://play.google.com/store/books/details?pcampaignid=books_read_action&id=Jj-tDwAAQBAJ>.

Professor Hasen offered me the opportunity to excerpt my new book Political Brands<https://play.google.com/store/books/details?pcampaignid=books_read_action&id=Jj-tDwAAQBAJ> on ELB. My publisher Edward Elgar Publishing<https://www.e-elgar.com/shop/political-brands> gave me permission to excerpt the books introductory chapter “Branding Itself.” These excerpts have been edited for continuity.

The language of marketing has infected political discourse. Recall when President George W. Bush’s Chief of Staff Andrew Card once said, “You don’t introduce new products in August,” explaining why the administration didn’t try to “sell” the second Gulf War to the American public.  Or as pollster Celinda Lake explained, “whether you’re Pepsi or Obama you have to run a campaign to get your brand out.”

Political branding comes from the government and from political actors. Branding from the government is propaganda when it feeds the public a particular view that is deeply misleading. Though interestingly, even the word “propaganda” started with different connotations when it was coined by the Vatican in 1622. The original idea from Pope Gregory XV was to propagate the Christian faith through “propaganda.”  Only after the First World War, did the word “propaganda” turn into the ugly manipulative mess that it is today.

Political campaigns are one place where political branding attempts to define candidates, policies, even the state of the nation. Incumbents will try to brand the economy as outstanding and brand themselves as the cause of the nation’s success. A key to success for many challengers vying for high office is the ability to convince disenchanted voters that the candidate can save them. This might explain the election of Franklin D. Roosevelt, who promised a nation of “forgotten men” going through its worst financial Depression a “New Deal”—one of the all-time great political brands in history.

In candidate campaigns, which often rely on broadcast ads to reach large and dispersed electorates, the first casualty is often the truth. Depressingly, facts frequently have nothing to do with who is electable. As Joe McGinniss summed up, “Politics, in a sense, has always been a con game.”

Often what political ads play on is not the argument that we should support a particular new candidate, but rather that we (the viewer) already support the candidate because the candidate is on our team.  As cognitive scientists showed “once a group is marked as competitive, Schadenfreude [taking pleasure in the misfortune of others] and Glückschmerz [sorrow felt at the good fortune of others] follow: no learning is required.”

Branding played a crucial role in the 2016 election. As Trump’s ex-personal lawyer, Michael Cohen, testified:

Donald Trump is a man who ran for office to make his brand great, not to make our country great. He had no desire or intention to lead this nation – only to market himself and to build his wealth and power. Mr. Trump would often say, this campaign was going to be the “greatest infomercial in political history.” … The campaign – for him – was always a marketing opportunity.

Branding has surely taken center stage with the Trump Presidency. As a master brander, he knows that repetition of catchphrases or an image is the way to hammer a point home. He’s not the only one who can deploy this technique. The day after Trump was inaugurated, a Women’s March in Washington, D.C. to protest him attracted more attendees than his inauguration. One way the two crowds could be distinguished at a distance was that many in the Trump crowd wore red “Make America Great Again” hats and many in the Women’s March crowd wore distinctive knitted pink hats.  Thus, even the resistance is branded.

Branding techniques do not have to be used for an iniquitous telos. Branding techniques were used by Sesame Street to teach generations of children to read. And there is some discussion of positive uses of branding in this book, like those deployed by survivors of the Parkland Massacre. But most of the book is focused on when branding is used to manipulate and abuse the public, often for base political ends.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“‘A complete disaster’: Fears grow over Nevada caucus malfunction; Volunteers complain of poor training for a vote-reporting system that was adopted on the fly.”<https://electionlawblog.org/?p=109589>
Posted on February 16, 2020 11:11 am<https://electionlawblog.org/?p=109589> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2020/02/16/nevada-avoid-iowa-caucus-mess-115437>

Anxiety is rising over the possibility of another tech-induced meltdown at the Nevada Democratic caucuses on Saturday.

In interviews, three caucus volunteers described serious concerns about rushed preparations for the Feb. 22 election, including insufficient training for a newly-adopted electronic vote-tally system and confusing instructions on how to administer the caucuses. There are also unanswered questions about the security of Internet connections at some 2,000 precinct sites that will transmit results to a central “war room” set up by the Nevada Democratic Party.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>
Election Meltdown Podcast Bonus Episode 4: Interview with Dale Ho about Fish v. Kobach Trial<https://electionlawblog.org/?p=109587>
Posted on February 16, 2020 11:02 am<https://electionlawblog.org/?p=109587> by Rick Hasen<https://electionlawblog.org/?author=3>

Here it is <https://slate.com/podcasts/amicus/2020/02/fish-v-kobach-state-of-voting-rights> for Slate plus members (free two week trial): My conversation with Dale Ho on his case against Kris Kobach who had a “show me your papers” Kansas law for voter registration
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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Irvine, CA 92697-8000
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http://electionlawblog.org<http://electionlawblog.org/>


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