[EL] ELB News and Commentary 1/28/20

Tue Jan 28 07:46:57 PST 2020

“TikTok Gets Political, Raising Concerns About Misinformation”<https://electionlawblog.org/?p=109184>
Posted on January 28, 2020 7:41 am<https://electionlawblog.org/?p=109184> by Rick Hasen<https://electionlawblog.org/?author=3>

WSJ video report.<https://www.wsj.com/video/tiktok-gets-political-raising-concerns-about-misinformation/1E65678E-1008-498F-AFB7-4BF356C77475.html?mod=article_inline&mod=hp_listb_pos1>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

On Pod Save the People Podcast with DeRay Talking about Upcoming Election Meltdown Book<https://electionlawblog.org/?p=109182>
Posted on January 28, 2020 7:32 am<https://electionlawblog.org/?p=109182> by Rick Hasen<https://electionlawblog.org/?author=3>

Listen here<https://crooked.com/podcast/know-your-limit-with-prof-richard-l-hasen/>.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

“Injunction upheld in campaign case; panel says Arkansas law likely unconstitutional”<https://electionlawblog.org/?p=109180>
Posted on January 28, 2020 7:24 am<https://electionlawblog.org/?p=109180> by Rick Hasen<https://electionlawblog.org/?author=3>

Northwest Arkansas Democrat-Gazette<https://www.nwaonline.com/news/2020/jan/28/injunction-upheld-in-campaign-case-2020/> (via How Appealing<https://howappealing.abovethelaw.com/2020/01/28/#111398>):

A panel of federal appellate judges agreed Monday that a campaign contribution blackout law that has been in place in Arkansas since 1996 is probably unconstitutional.

The panel upheld<https://ecf.ca8.uscourts.gov/opndir/20/01/192260P.pdf> a preliminary injunction that U.S. District Judge James Moody Jr. imposed June 17 to prohibit Arkansas Code Annotated 7-6-203(e) from being enforced while its constitutionality is determined.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>

“Opinion: Kentucky photo ID bill needs more work and should take effect after 2020 election”<https://electionlawblog.org/?p=109178>
Posted on January 28, 2020 7:18 am<https://electionlawblog.org/?p=109178> by Rick Hasen<https://electionlawblog.org/?author=3>

Josh Douglas Courier-Journal oped<https://www.courier-journal.com/story/opinion/2020/01/28/kentucky-voting-laws-photo-id-bill-should-delayed-until-2021/4587852002/>.
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Posted in election administration<https://electionlawblog.org/?cat=18>, voter id<https://electionlawblog.org/?cat=9>

Crum: The Voting Rights Act of 1869<https://electionlawblog.org/?p=109170>
Posted on January 28, 2020 6:00 am<https://electionlawblog.org/?p=109170> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is the second in a series of guest posts by Travis Crum<https://www.law.uchicago.edu/faculty/crum> on the 150th anniversary of the 15th amendment:

In celebrating the Fifteenth Amendment’s sesquicentennial, let’s start at the beginning and ask a deceptively complicated question: Why did Congress pass the Fifteenth Amendment instead of the Voting Rights Act of 1869?

By the time the Fifteenth Amendment was sent to the States for ratification in early 1869, Congress had already passed legislation enfranchising black men in the District of Columbia, the federal territories, and the Reconstructed South. Blacks, however, remained disenfranchised in several Northern and Border States. Given our current understanding of the Fourteenth Amendment—which had just been ratified—Congress would have been well within its constitutional authority to mandate black suffrage in the States.

One possible explanation is that the Fifteenth Amendment was an entrenchment device. But this narrative only explains why there is an amendment; it does not explain why the Reconstruction Congress did not first pass a Voting Rights Act of 1869.

As I detail in my forthcoming law review article, The Superfluous Fifteenth Amendment?<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3524597>, the Reconstruction Congress actively considered passing both a nationwide suffrage statute anda constitutional amendment. The Radical Republicans’ logic was straightforward: ratification of the Fifteenth Amendment was by no means assured and a statute enfranchising black men in the Border States and the North would create a powerful new voting bloc in support of ratification.

Congress, however, rejected the statutory solution and opted for only an amendment. Moderate Republicans—who were the swing voters at the time—believed that Congress lacked enforcement authority under the then-recently ratified Fourteenth Amendment to impose voting qualifications on the States and that an amendment was the only legally and politically viable option. This logic may seem alien today, but the Reconstruction generation conceptualized civil and political rights as distinct bundles. Under this view, citizenship was not coextensive with suffrage, and the Fourteenth Amendment’s protections did not include the franchise. Hence, the Reconstruction generation’s belief that the Fourteenth Amendment did not enfranchise women<https://supreme.justia.com/cases/federal/us/88/162/> and the necessity of the Nineteenth Amendment, which coincidentally turns 100 this year.

Congress’s actions here follow a pattern. Throughout the Civil War and Reconstruction, racial progress proceeded in an incremental fashion. The Emancipation Proclamation—which freed slaves in the Confederacy but not in the four Border States—was the forerunner to the Thirteenth Amendment. The Civil Rights Act of 1866 was the statutory precursor to the Fourteenth Amendment. In each of these examples, a sub-constitutional rule was later expanded on and entrenched via a constitutional amendment.

So too with the Fifteenth Amendment. The Thirty-Ninth Congress dramatically expanded black suffrage in areas of federal control, but it drew the line at enfranchising blacks in States. After the Fourteenth Amendment was ratified, the Fortieth Congress respected those lines, rejected the nationwide suffrage statute proposed by the Radicals, and pushed through a constitutional amendment. The Fifteenth Amendment, therefore, was a new grant of federal authority, distinct from Congress’s Fourteenth Amendment power and meriting a distinctive doctrinal framework.

Ultimately, the Reconstruction Framers’ decision to pursue a constitutional amendment proved fortuitous. In the 1870s and 1880s, the Supreme Court invalidated or severely curtailed laws that enforced the Fourteenth Amendment, including the Civil Rights Act of 1875’s prohibition on racial discrimination in public accommodations. And in 1894, Congress repealed several Reconstruction-era laws that protected the right to vote. It is not difficult to imagine a similar fate befalling a Voting Rights Act of 1869 if passage of that statute had backfired politically and doomed the Fifteenth Amendment’s ratification. By enshrining the right to vote free of racial discrimination into the Constitution, the Reconstruction Framers preserved a powerful legal and rhetorical tool that would prove immensely valuable during the Civil Rights Movement.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Election Officials To Convene Amid Historic Focus On Voting And Interference”<https://electionlawblog.org/?p=109176>
Posted on January 27, 2020 5:08 pm<https://electionlawblog.org/?p=109176> by Rick Hasen<https://electionlawblog.org/?author=3>

NPR<https://www.npr.org/2020/01/27/799284035/election-officials-to-convene-amid-historic-focus-on-voting-and-interference?utm_term=nprnews&utm_campaign=politics&utm_medium=social&utm_source=twitter.com>:

Still, the push to tighten election security and boost public confidence has been complicated by Trump’s downplaying of the foreign threat and his repeated claims, without evidence, that voter fraud is rampant.

Former Secretary of Homeland Security Michael Chertoff thinks Trump’s remarks are “unhelpful” — imagine, he asked, how much difference it might make if the president were on the same page as his advisers and local election officials.

“A president who got out there and really encouraged investment in the security would be again a positive factor.” But, adds Chertoff, “I think that it’s not deterring the people who are actually doing the work from carrying it out.”

Shelby Pierson, the election threats executive within the Office of the Director of National Intelligence, was asked by NPR point-blank whether she has to try to work around Trump. No, she said.

And for his part, Krebs insists that he has all the support and guidance he needs from the White House to do his job.

“We all know what’s at stake here,” he says. “And it’s defending democracy. It’s protecting 2020, and I think the American people need to have confidence that we take this seriously.”

Krebs warns, though, that there’s no such thing as 100% security and that the threat is evolving. While Russians conducted the attacks in 2016, intelligence officials expect that attacks this year could come from others as well, including Iran, China or some domestic player.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Recording Shows That the Swamp Has Not Been Drained”<https://electionlawblog.org/?p=109168>
Posted on January 27, 2020 12:51 pm<https://electionlawblog.org/?p=109168> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/01/26/us/politics/trump-recording-donors.html>

Ot became such a central slogan of Donald J. Trump’s 2016 campaign that at rallies his supporters would chant the three words representing his pledge to take on big donors and special interests: “Drain the swamp.”

But as President Trump ramps up his 2020 re-election bid, it is clear that he has tolerated if not fostered a swamp of his own in Washington, granting up-close access to deep-pocketed supporters and interest groups willing to write six- and seven-figure checks to his political operation. Some have used the opportunity to plead their cases directly to him.

The latest evidence came over the weekend, with the release of a secret recording<https://www.nytimes.com/2020/01/25/us/politics/trump-ukraine-donors.html> of an April 2018 dinner for major donors and prospective donors to a super PAC supporting Mr. Trump.

While news of the recording primarily focused on Mr. Trump’s call for the removal of Marie L. Yovanovitch<https://www.nytimes.com/2020/01/24/us/politics/trump-recording-yovanovitch.html> as ambassador to Ukraine after a donor claimed she had disparaged the president, the recording revealed that Mr. Trump engaged in policy discussions with many other donors pushing their own agendas.

There was the New York real estate developer whose company’s project in South Korea was proposed to Mr. Trump as a possible site for his summit with Kim Jong-un, the leader of North Korea.

There was the Canadian steel magnate who pushed the president to further limit steel imports to the United States, and whose companies donated $1.75 million to the super PAC.

Other attendees discussed government policies that could benefit their businesses, including building a highway for self-driving trucks and regulations that would help make trucks powered by gas compressors to be more competitive with electric-powered vehicles.

The recording is a glimpse into a broader pattern in which the administration appointed industry lobbyists to key policymaking jobs, heeded the deregulatory wishes of big corporations and granted regular access to donors and influential political supporters. Some of the policies sought by the donors at the 2018 dinner have been subsequently introduced in Congress; it is unclear in those cases whether the president or the White House intervened.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, lobbying<https://electionlawblog.org/?cat=28>

Breaking: Divided En Banc 9th Circuit Holds Arizona Violated Voting Rights Act by Not Partially Counting Out-of-Precinct Provisional Ballots and Engaged in Intentional Racial Discrimination in Banning Collection of Absentee Ballots<https://electionlawblog.org/?p=109166>
Posted on January 27, 2020 9:29 am<https://electionlawblog.org/?p=109166> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the 432 pages of opinions at this link.<https://drive.google.com/file/d/1nQaUi2rt6bhvhn0unoYwTgsNailRkrYG/view> I strongly suspect that the Supreme Court will take this case, which reversed a lower court and a three-judge Ninth Circuit panel. A finding of intentional discrimination is especially important because it provides a basis for someone to ask Arizona to face preclearance for voting changes under the bail-in provisions of Section 3 of the Voting Rights Act.
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Posted in election administration<https://electionlawblog.org/?cat=18>, Voting Rights Act<https://electionlawblog.org/?cat=15>

“How does a Republican lead on election night and still lose Pennsylvania? It’s called the ‘blue shift.’”<https://electionlawblog.org/?p=109164>
Posted on January 27, 2020 7:55 am<https://electionlawblog.org/?p=109164> by Rick Hasen<https://electionlawblog.org/?author=3>

The Philadelphia Inquirer reports<https://www.inquirer.com/politics/election/pennsylvania-2020-election-blue-shift-20200127.html?__vfz=medium%3Dsharebar>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

New USC Election Cybersecurity Initiative Launched<https://electionlawblog.org/?p=109161>
Posted on January 27, 2020 7:51 am<https://electionlawblog.org/?p=109161> by Rick Hasen<https://electionlawblog.org/?author=3>

Details.<https://www.electionsecurity.usc.edu/>
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Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>

--
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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