[EL] ELB News and Commentary 2/20/20-corrected link

[Rick Hasen]

Here is the corrected link to the PILF press release linked below:

https://publicinterestlegal.org/blog/maine-sos-matt-dunlap-sued-for-failing-to-disclose-voter-data/

Sorry for the error.

Rick


From: Rick Hasen <rhasen at law.uci.edu>
Date: Thursday, February 20, 2020 at 7:33 AM
To: Election Law Listserv <law-election at uci.edu>
Subject: ELB News and Commentary 2/20/20

“Trump, RNC announce $10 million plan to battle Dems on voting lawsuits”<https://electionlawblog.org/?p=109635>
Posted on February 20, 2020 7:29 am<https://electionlawblog.org/?p=109635> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2020/02/20/michigan-voting-lawsuits-rnc-trump-116142?utm_medium=email&utm_source=pu_48&utm_campaign=20200220_119891_&utm_content=>

President Donald Trump’s reelection campaign and the Republican National Committee are pumping more than $10 million into a legal campaign challenging Democratic voting-related lawsuits and building a massive Election Day operation.

The multi-million-dollar effort pits the two parties against each other on the issue of voting rights, with Democrats contending that they’re trying to make it easier for more people to cast ballots — and Republicans arguing that they must guard against potential fraud.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Bad News from Michigan: “GOP leader nixes bill to process influx of absentee ballots”<https://electionlawblog.org/?p=109633>
Posted on February 20, 2020 7:24 am<https://electionlawblog.org/?p=109633> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://www.wilx.com/content/news/GOP-leader-nixes-bill-to-process-influx-of-absentee-ballots-568011151.html>

 A top Republican lawmaker on Wednesday came out in opposition to legislation that would ease Michigan election clerks’ ability to process an expected influx of absentee ballots, saying it would set a “dangerous precedent.”

Local officials want legislators to let them start opening return envelopes for absentee ballots the day before Election Day. The actual ballots would still stay inside secrecy envelopes until counting on Election Day.

As of last week, the number of absentee ballot applications was up by more than 60% for the March 10 presidential primary compared to 2016 following voters’ passage of a 2018 ballot initiative that allows people to vote absentee for any reason, according to Democratic Secretary of State Jocelyn Benson’s office. While the bill was not expected to be approved in time for that contest, Senate Majority Leader Mike Shirkey’s stance makes it unlikely that the proposed change will be enacted before the November presidential election.

Shirkey said he understands clerks’ concerns, but he wants to see how the current process works.

Adam Ambrogi:<https://twitter.com/AdamAmbrogi/status/1230463257267273735>
[cid:image002.jpg at 01D5E7C2.112B26D0]<https://twitter.com/AdamAmbrogi>
Adam Ambrogi at AdamAmbrogi<https://twitter.com/AdamAmbrogi>



No, it’s actually exactly how you want to deal with problems. Folks will remember this line. “I don’t necessarily think we should be trying to solve a problem before it actually occurs, number one” https://www.wilx.com/content/news/GOP-leader-nixes-bill-to-process-influx-of-absentee-ballots-568011151.html …<https://t.co/Qx3N7ZVbSn>
[cid:image003.jpg at 01D5E7C2.112B26D0]<https://t.co/Qx3N7ZVbSn>
GOP leader nixes bill to process influx of absentee ballots<https://t.co/Qx3N7ZVbSn>

A top Republican lawmaker on Wednesday came out in opposition to legislation that would ease Michigan election clerks’ ability to process an expected influx of absentee ballots, saying it would set a...<https://t.co/Qx3N7ZVbSn>
wilx.com<https://t.co/Qx3N7ZVbSn>

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


“Caucus chaos again? Experts fear vote-counting problems in Nevada”<https://electionlawblog.org/?p=109631>
Posted on February 20, 2020 7:14 am<https://electionlawblog.org/?p=109631> by Rick Hasen<https://electionlawblog.org/?author=3>

NBC News:<https://www.nbcnews.com/politics/2020-election/caucus-chaos-again-experts-fear-vote-counting-problems-nevada-n1139001>

A new early-voting system, high turnout and questions about a never-before-used digital tool being used to process results could threaten the success of the Nevada Democratic caucuses on Saturday, election experts told NBC News.

“I don’t see how any technologist or any party official or any political scientist can promise that this will turn out OK,” said Mark Lindeman, the director of science and technology policy for Verified Voting, a nonpartisan nonprofit group that advocates for election accuracy and transparency.

“There are too many tools and procedures that are being rolled out, some at the last minute,” he continued. “And my impression is that the people on the ground who are charged with implementing these procedures and using these tools are not confident they can do it.”…

The Nevada Democratic Party said it will be using a digital tool they are calling a “caucus calculator” to help process the results. According to state party officials, the tool is a Google Forms program that has been pre-loaded with early vote results specific to that precinct. It’s also pre-loaded with formulas that will be used to calculate delegate allocation.

Caucus volunteers — who staff the precincts and run the caucuses — began receiving hands-on training with iPads that contain the tool on Tuesday. The training will continue until Saturday, according to the Nevada Democratic Party.

Party officials have repeatedly said that nothing used during the Iowa caucuses — including the smartphone app that caused a significant delay in reporting results due to a “coding issue”<https://www.nbcnews.com/politics/politics-news/iowa-democratic-party-blames-app-coding-issue-delay-caucus-results-n1129701> — will be used during the Nevada caucuses. Officials also said they had independent security experts test the process, but could not say what the testing looked like.

If the iPads fail for any reason, the volunteers will use paper backups.

“I think we have reason to be worried,” said Rick Hasen, a professor of law and political science at the University of California-Irvine and the editor of Election Law Blog<http://electionlawblog.org/>. “As was the case in Iowa, you have the party doing multiple new things at once. Here, one is new technology, and two is new rules, with the early voting.”

“It makes me queasy,” he added, calling the system “incredibly complex.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“What happens during a contested Democratic National Convention?”<https://electionlawblog.org/?p=109629>
Posted on February 20, 2020 7:02 am<https://electionlawblog.org/?p=109629> by Rick Hasen<https://electionlawblog.org/?author=3>

Joshua Spivak:<https://thehill.com/opinion/campaign/483480-what-happens-during-a-contested-democratic-national-convention>

Iowa and New Hampshire have voted, but the Democratic field has not appreciably thinned. With no candidate even gaining 30 percent in the first two states, political forecasters have noted that the odds are greatly increasing that no one will have a majority heading into the Democratic convention in Milwaukee this summer. While discussion of a brokered convention comes up every four years, the parties have done little to plan for what one would actually look like. Thanks to changes in the process, a contested fight could be vastly more complicated than in the past.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


After Maine SOS Dunlap Successfully Sued Pence-Kobach Fraud Commission, PILF (Led by Commission Member Christian Adams) Sues Dunlap<https://electionlawblog.org/?p=109627>
Posted on February 20, 2020 6:55 am<https://electionlawblog.org/?p=109627> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the press release here<https://www.cnet.com/news/your-new-iphone-11-doesnt-have-5g-but-you-shouldnt-care/>. It appears that it links to some audio (without attribution) to my Slate “Election Meltdown” interview<https://megaphone.link/SLT6839728202> with Secretary Dunlap<https://slate.com/podcasts/amicus/2020/01/widespread-voter-fraud> about the work of the Fraudulent Fraud Squad.

Glad they are listening!
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


Political Brands by Prof. Torres-Spelliscy (Post 4 of 4)<https://electionlawblog.org/?p=109543>
Posted on February 20, 2020 6:00 am<https://electionlawblog.org/?p=109543> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is the last 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 results of the 2016 presidential election motivated me to write Political Brands<https://play.google.com/store/books/details?pcampaignid=books_read_action&id=Jj-tDwAAQBAJ>. How, I wondered, could America have elected a brand as president?  The other occurrence that motivated me to write this book is a sense that Americans are suffering from “truth decay.”  To me, electing a brand president and the decay of truth are intertwined, because the more that voters rely on flashy branding to dictate who is electable, the more they are likely to fall for a slick, media-savvy candidate over a competent and truthful one.

I am a campaign finance lawyer by training. And one of the drivers of the high price of political campaigns is the exorbitant cost of advertising. What first got me interested in branding was a statement from Senator Russ Feingold, who warned in 2011 that “We’re going to have Republican and Democrat toothpaste.”  His quote inspired me to look at commercial branding, political advertising and how these two spheres intersect.  And that was all before Trump was elected president.

The criminal and congressional investigations into Trump’s election in 2016 have provided a treasure trove of information for a researcher like me. In a typical election, political ads that were placed on Facebook for a millisecond could be lost to history. But now some of those ads, because they are suspected to be part of a foreign attack on the integrity of our elections, are part of a permanent and public Congressional record. Like the Congressional investigation into Watergate, which gave the public a rare peek behind the curtain into the 1972 election, the investigations into the 2016 election provide a chance for a deeper dive on how modern elections are transforming.

A final reason that I wanted to write this book is to show the artifice of political branding. Typically, the people using political branding techniques are just trying to manipulate the public. When President Trump calls his Mar-a-Lago golf club in Florida the “Winter White House,” that is branding and not original branding either. President Nixon (1969-74) called his Florida home the “Winter White House.”   When Special Counsel Robert S. Mueller III’s investigation into the 2016 election is called a “witch hunt” by Presidential Advisor Kellyanne Conway, that is branding.  Again, it’s not original branding. This phrase harkens back to the dark days of the Salem witch trials—the original American “witch hunt.”  When White House Chief Strategist Steve Bannon said, “drain the swamp,” about limiting the power of Washington insiders, that was branding. Again, it wasn’t original.  Senator Richard Neuberger used the phrase “drain the swamp” in a piece in the New York Times urging the adoption of public financing for federal elections back in 1956.   The original Mother Jones (the woman whom the magazine is named after) also said “drain the swamp” in 1913.  Even Speaker of the House Nancy Pelosi in 2006 called for Democrats to “drain the swamp.”

But when working for a firm called Cambridge Analytica, Steve Bannon tested the phrase “drain the swamp” years before it was used in the 2016 election campaign by candidate Donald Trump.  Clearly, what Mr. Bannon was doing was brand testing, and “drain the swamp” hit the right chord for his target market.  My hope is that perhaps when Americans see that “Winter White House,” “witch hunt” and “drain the swamp” are all just basic branding trying to sell something, they can be less gullible about falling for messages designed to tug at our emotions and obfuscate the truth.

“Branding” has been called “a process of manufacturing meaning.”  I don’t disagree, but that is precisely why branding’s power needs to be interrogated. Manufacturing meaning is a scary power in the wrong hands. During the Third Reich in Germany, propagandist Joseph Goebbels “manufactured meaning” too. It led to genocide and a World War.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


11th Circuit Unanimously Affirms District Court Preliminary Injunction Blocking Enforcement of Florida Legislature Law Requiring Ex-Felons to Pay Fees and Fines Before Reenfranchisement<https://electionlawblog.org/?p=109623>
Posted on February 19, 2020 7:39 am<https://electionlawblog.org/?p=109623> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the 78-page opinion at this link<https://campaignlegal.org/sites/default/files/2020-02/Document.pdf>. It begins:

On November 6, 2018, Florida voters approved Amendment 4, a state constitutional amendment that automatically restored voting rights to ex-felon who had completed all of the terms of their sentences.

Contemporary media reports suggested that as many as 1.4 million felons could be eligible for reenfranchisement under the law. Accounts differed as to whether this figure made Amendment 4 the single largest act of enfranchisement since the Nineteenth Amendment in 1920, the Voting Rights Act in 1965, or the Twenty-Sixth Amendment in 1971. By any measure, Amendment 4’s enfranchisement was historic.

Amendment 4 provided that a felon’s “voting rights shall be restored upon completion of all terms of sentence including parole or probation.” Following its passage, the Florida legislature passed Senate Bill 7066, which implemented the Amendment and interpreted its language to require payment of all fines, fees and restitution imposed as part of the sentence (collectively, “legal financial obligations” or “LFOs”). The Florida Supreme Court later agreed with the legislature’s interpretation of the Amendment—during the pendency of this appeal, it held that the plain text of Amendment 4 requires payment of all LFOs as a precondition of re-enfranchisement.

Following the passage of SB 7066, the seventeen plaintiffs in this case brought suit, challenging the constitutionality of the LFO requirement. Each plaintiff is a felon who has alleged that he or she would be eligible for reenfranchisement under Amendment 4 but for non-payment of outstanding LFOs. Each plaintiff has also alleged that he or she is indigent and, therefore, genuinely unable to pay those obligations.

The cases were consolidated in the United States District Court for the
Northern District of Florida, which then issued a preliminary injunction requiring the State to allow the named plaintiffs to register and vote if they are able to show that they are genuinely unable to pay their LFOs and would otherwise be eligible to vote under Amendment 4. From this order the State timely appealed to this Court.

Because the LFO requirement punishes those who cannot pay more harshly than those who can—and does so by continuing to deny them access to the ballot box—Supreme Court precedent leads us to apply heightened scrutiny in asking whether the requirement violates the Equal Protection Clause of the Fourteenth Amendment as applied to these plaintiffs. When measured against this standard, we hold that it does and affirm the preliminary injunction entered by the district court.
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Posted in felon voting<https://electionlawblog.org/?cat=66>


--
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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http://electionlawblog.org<http://electionlawblog.org/>


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