[EL] ELB News and Commentary 1/29/20

[Rick Hasen]

My Interview with Terry Gross on NPR’s Fresh Air: “‘Election Meltdown Is A Real Possibility’ In 2020 Presidential Race, Author Warns<https://electionlawblog.org/?p=109213>
Posted on January 29, 2020 11:25 am<https://electionlawblog.org/?p=109213> by Rick Hasen<https://electionlawblog.org/?author=3>

You can listen to the interview with Fresh Air at this link<https://www.npr.org/2020/01/29/800778189/election-meltdown-is-a-real-possibility-in-2020-presidential-race-author-warns>.

Preorders<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> of Election Meltdown; Episode 1<https://megaphone.link/SLT6839728202> of the Election Meltdown Podcast (in conjunction with Slate Amicus); Book Tour info<https://sites.uci.edu/electionmeltdown/book-tour/>; Washington Post Sunday Outlook preview<https://www.washingtonpost.com/outlook/the-loser-of-novembers-election-may-not-concede-their-voters-wont-either/2020/01/23/4d81be8c-3d6c-11ea-baca-eb7ace0a3455_story.html>.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“The SEC’s New Rules Will Move Companies Backward”<https://electionlawblog.org/?p=109211>
Posted on January 29, 2020 10:46 am<https://electionlawblog.org/?p=109211> by Rick Hasen<https://electionlawblog.org/?author=3>

Eleanor Bloxham<https://www.barrons.com/articles/the-secs-new-proxy-rules-will-hurt-good-boards-51580295601?mod=hp_LATEST> for Barron’s.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“1 Simple Step Could Help Election Security. Governments Aren’t Doing It”<https://electionlawblog.org/?p=109209>
Posted on January 29, 2020 9:37 am<https://electionlawblog.org/?p=109209> by Rick Hasen<https://electionlawblog.org/?author=3>

NPR<https://www.npr.org/2020/01/29/800131854/1-simple-step-could-help-election-security-governments-arent-doing-it>:

Local governments across the United States could perform a simple upgrade to strengthen voters’ confidence that they are what they say they are: use websites that end in .gov.

Federal officials control the keys to the “.gov” top-level domain, making it less likely that somebody could get one fraudulently and use it to fool people.

Domains that end in .com or .org, meanwhile, could be set up by attackers to try to intercept users seeking information from real sources.

But with an uneven appreciation across the country about the way a fake website could deceive users, and with little guidance from officialdom about what to do, many counties aren’t taking that step, cyberspecialists say.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Bipartisan House Ethics Warning About Members and Their Staffs Circulating Deep Fakes<https://electionlawblog.org/?p=109207>
Posted on January 29, 2020 8:22 am<https://electionlawblog.org/?p=109207> by Rick Hasen<https://electionlawblog.org/?author=3>

New memo <https://ethics.house.gov/sites/ethics.house.gov/files/wysiwyg_uploaded/Deep%20Fakes%20Pink%20Sheet%20Guidance-Final.pdf> (via Brian Svoboda<https://twitter.com/BrianSvoboda/status/1222553041469104128>):

However, intentional distortions of audio and/or visual representations can be far more damaging. Members have a duty, and a First Amendment right, to contribute to the public discourse, including through parody and satire. However, manipulation of images and videos that are intended to mislead the public can harm that discourse and reflect discreditably on the House.
Moreover, Members or their staff posting deep fakes “could erode public trust, affect public discourse, or sway an election.”
Accordingly, Members, officers, and employees posting deep fakes or other audio-visual distortions intended to mislead the public may be in violation of the Code of Official Conduct.

Prior to disseminating any image, video, or audio file by electronic means, including social media, Members and staff are expected to take reasonable efforts to consider whether such representations are deep fakes or ar intentionally distorted to mislead the public.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>


“The Cybersecurity 202: DNC heads to Iowa to help protect caucuses from digital attacks and disinformation”<https://electionlawblog.org/?p=109205>
Posted on January 29, 2020 8:17 am<https://electionlawblog.org/?p=109205> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2020/01/29/the-cybersecurity-202-dnc-heads-to-iowa-to-help-protect-caucuses-from-digital-attacks-and-disinformation/5e309dc888e0fa6ea99d626b/>:

The Democratic National Committee’s top cybersecurity and disinformation experts will head to Iowa to help protect the caucuses against digital attacks from Russia and other U.S. adversaries.

The team will run a rapid response operation out of the Iowa Democratic Party’s main operations center in Des Moines on caucus night, the DNC’s chief technology officer Nellwyn Thomas said in an interview.

The team will be standing by to act on any reports of possible hacking of caucus technology. It will also flag for social media companies anything that violates their policies and work with the state party and campaigns to punch back at phony narratives that spread online.

“All eyes are on Iowa,” Thomas told me. “Any doubt about the outcome or especially about the legitimacy of the process could really cast a shadow, so we’re doing everything we can to be ready for it.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The Technology 202: Pinterest bans misinformation about voting and the census”<https://electionlawblog.org/?p=109203>
Posted on January 29, 2020 8:14 am<https://electionlawblog.org/?p=109203> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.politico.com/news/2020/01/29/trump-black-voters-cash-giveaways-108072>
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>


“Who should count? Details of Missouri GOP redistricting plan could mean big changes”<https://electionlawblog.org/?p=109201>
Posted on January 29, 2020 8:10 am<https://electionlawblog.org/?p=109201> by Rick Hasen<https://electionlawblog.org/?author=3>

KC Star:<https://www.kansascity.com/news/politics-government/article239731573.html>

Who should be counted when Missouri’s 197 legislative districts are redrawn: everyone who lives in the state or only citizens old enough to vote?

It’s not a question that’s gotten much attention in the more than a year lawmakers have been debating whether to repeal the redistricting plan overwhelmingly enacted by voters in 2018.

Yet legal scholars say in nearly every version of legislation targeting the plan <https://www.senate.mo.gov/20info/BTS_Web/Bill.aspx?SessionType=R&BillID=26838179> there is one line that could have a massive impact — a change in the state constitution requiring that districts be drawn “on the basis of one person, one vote.

Republicans downplay the significance, saying the change is merely an effort to match federal law.

But critics contend the revision could result in a redistricting process that forgoes the use of total population to draw districts and insteadexcludes all non-voters, specifically children and non-citizens.

That change could also shift political power to Republican-leaning parts of the state.

“I don’t know if putting one person, one vote into the state constitution is intended to serve as a predicate for citizen-only districting, but it’s certainly a possibility,” said Rick Hasen, a professor of law and political science at the University of California, Irvine. “What is the alternative explanation?”
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Posted in redistricting<https://electionlawblog.org/?cat=6>


“Trump allies are handing out cash to black voters”<https://electionlawblog.org/?p=109199>
Posted on January 29, 2020 8:03 am<https://electionlawblog.org/?p=109199> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/news/2020/01/29/trump-black-voters-cash-giveaways-108072>:

Allies of Donald Trump have begun holding events in black communities where organizers lavish praise on the president as they hand out tens of thousands of dollars to lucky attendees.

The first giveaway took place last month in Cleveland, where recipients whose winning tickets were drawn from a bin landed cash gifts in increments of several hundred dollars, stuffed into envelopes. A second giveaway scheduled for this month in Virginia has been postponed, and more are said to be in the works.

The tour comes as Trump’s campaign has been investing its own money to make inroads<https://www.politico.com/news/2019/12/13/trump-reelection-black-voters-082853> with black voters and erode Democrats’ overwhelming advantage with them. But the cash giveaways are organized under the auspices of an outside charity, the Urban Revitalization Coalition, permitting donors to remain anonymous and make tax-deductible contributions.

The organizers say the events are run by the book and intended to promote economic development in inner cities. But the group behind the cash giveaways is registered as a 501(c)3 charitable organization. One leading legal expert on nonprofit law said the arrangement raises questions about the group’s tax-exempt status, because it does not appear to be vetting the recipients of its money for legitimate charitable need.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, tax law and election law<https://electionlawblog.org/?cat=22>


“Trump’s Digital Advantage Is Freaking Out Democratic Strategists”<https://electionlawblog.org/?p=109196>
Posted on January 29, 2020 7:58 am<https://electionlawblog.org/?p=109196> by Rick Hasen<https://electionlawblog.org/?author=3>

Tom Edsall in the NYT<https://www.nytimes.com/2020/01/29/opinion/trump-digital-campaign-2020.html?action=click&module=Opinion&pgtype=Homepage>:

If you attend an evangelical or a Catholic Church, a women’s rights march or a political rally of any kind, especially in a seriously contested state, the odds are that your cellphone ID number, home address, partisan affiliation and the identifying information of the people around you will be provided by geofencing marketers<https://www.propellant.media/geofencing-marketing-company-providers/> to campaigns, lobbyists and other interest groups.

With increasing speed, digital technology is transforming politics, constantly providing novel ways to target specific individuals, to get the unregistered registered, to turn out marginal voters, to persuade the undecided and to suppress support for the opposition.

Democrats and Republicans agree that the Trump campaign is far ahead<https://www.nytimes.com/2019/10/16/opinion/trump-digital-campaign.html?searchResultPosition=1> of the Democratic Party in the use of this technology, capitalizing on its substantial investment during the 2016 election and benefiting from an uninterrupted high-tech drive since then.

Republicans “have a big advantage this time,” Ben Nuckels<https://www.strother-nuckels.com/ben-nuckels/>, a Democratic media consultant said in a phone interview. “They not only have all the data from 2016 but they have been building this operation into a nonstop juggernaut.”

The new technology, Nuckels continued, allows campaigns to “deliver a broader narrative over the top” on television and other media, while “underneath in digital you are delivering ads that are tailored to those voters that you need to influence and persuade the most.”
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Posted in campaigns<https://electionlawblog.org/?cat=59>


“Column: Will the 2020 elections be fair and safe from meddling? Fasten your seat belts, it’s going to be bumpy”<https://electionlawblog.org/?p=109194>
Posted on January 29, 2020 7:36 am<https://electionlawblog.org/?p=109194> by Rick Hasen<https://electionlawblog.org/?author=3>

I spoke <https://www.latimes.com/opinion/story/2020-01-29/column-will-the-2020-elections-be-fair-and-safe-from-meddling-fasten-your-seat-belts-its-going-to-be-bumpy> with the LA Times Patt Morrison about my upcoming 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>. There’s both an audio Q and A and an edited transcript.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


Crum: Originalism, Colorblindness, and the Fifteenth Amendment<https://electionlawblog.org/?p=109172>
Posted on January 29, 2020 6:00 am<https://electionlawblog.org/?p=109172> by Rick Hasen<https://electionlawblog.org/?author=3>

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

Any project to revive a constitutional provision must confront originalism’s hold on today’s Court. Originalist arguments play a central role in nearly every constitutional case. And today, Justice Thomas is the Court’s most prominent originalist and a leading voice in election law cases.

Thomas is also the Court’s most prolific norm entrepreneur, authoring numerous separate opinions questioning longstanding doctrines on originalist grounds. To take a few examples: Thomas has rejected the legitimacy of the administrative state<https://www.supremecourt.gov/opinions/14pdf/13-1041_0861.pdf>, challenged the actual-malice standard in defamation<https://www.supremecourt.gov/opinions/18pdf/17-1542_ihdk.pdf> cases, and called Gideon<https://supreme.justia.com/cases/federal/us/372/335/> into doubt<https://www.supremecourt.gov/opinions/18pdf/17-1026_2c83.pdf>. In the field of election law, Thomas recently questioned<https://www.supremecourt.gov/opinions/15pdf/14-940_ed9g.pdf> the one-person, one-vote principle<https://supreme.justia.com/cases/federal/us/377/533/> because the “Constitution does not prescribe any one basis for apportionment within States.”

But Thomas has been inconsistent in how he approaches election law cases. Thomas is an ardent defender of Shaw’s<https://supreme.justia.com/cases/federal/us/509/630/> cause of action against racial gerrymandering. As he once commented<https://supreme.justia.com/cases/federal/us/517/952/>, there can be no “exempting intentional race-based redistricting from our well-established Fourteenth Amendment standard” of applying strict scrutiny to race-based governmental decision-making.

Shaw is an awkward doctrine for a staunch originalist. Shaw is premised on the Equal Protection Clause, even though the Fourteenth Amendment was originally understood<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3524597> to exclude protections for voting rights. After all, that’s why we have a Fifteenth Amendment. So on the one hand, Thomas believes that the Fourteenth Amendment cannot be invoked to govern malapportionment claims because it is silent on such questions and judges are ill-equipped to make such an inherently political choice. But on the other hand, Thomas has mechanically applied his colorblind vision of the Fourteenth Amendment to what should be considered Fifteenth Amendment cases under his originalist framework.

Thomas has also taken a glaringly un-originalist tact in cases involving Congress’s Reconstruction Amendment enforcement authority. Boerne’s<https://supreme.justia.com/cases/federal/us/521/507/> congruence-and-proportionality test has been roundly<https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=7924&context=ylj> criticized<https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=12584&context=journal_articles> on originalist grounds for ignoring the Reconstruction Congress’s clear desire to adopt McCulloch’s rationality standard. Unlike Justice Scalia, who ultimately renounced<https://supreme.justia.com/cases/federal/us/541/509/> Boerne, Thomas continues<https://supreme.justia.com/cases/federal/us/566/30/> to rely onit. Indeed, Thomas invoked Boerne in his separate opinion in Northwest Austin<https://supreme.justia.com/cases/federal/us/557/193/>, arguing that Section 5’s preclearance provision should be invalidated.

For a Justice who claims to strive for consistency and rejects the principle of stare decisis<https://www.supremecourt.gov/opinions/18pdf/17-646_d18e.pdf>, Thomas’s continued adherence to Shaw and Boerne appears to be—pardon the pun—gerrymandered. Indeed, a supposed virtue of originalism is its ability to constrain judges and keep their decisions tied to the original understanding of a constitutional provision. Yet in stark contrast to his usual willingness to question precedent, Thomas has stayed mum and applied colorblind principles to voting rights cases for his nearly thirty years on the Court.

By taking the Fifteenth Amendment seriously as an independent constitutional provision, the inconsistent application of originalism becomes apparent and the colorblind constitution is revealed to be a normative preference masquerading as a historical norm. As my post yesterday demonstrated, the Reconstruction Framers distinguished between civil and political rights, but originalists on the Court have not offered any historical explanation for why a doctrine developed to govern civil rights should apply to political rights. And as my post tomorrow will argue, the colorblind approach misreads the history of the Fifteenth Amendment’s passage and ratification.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Panel of federal judges asks tough questions about Amendment 4 and felon voting”<https://electionlawblog.org/?p=109192>
Posted on January 28, 2020 5:20 pm<https://electionlawblog.org/?p=109192> by Rick Hasen<https://electionlawblog.org/?author=3>

Miami Herald:<https://www.miamiherald.com/news/politics-government/state-politics/article239719728.html>

Three federal judges hearing a legal challenge to a Florida measure allowing felons to vote asked tough questions of the attorney for Gov. Ron DeSantis on Tuesday, repeatedly asking about the fairness of a subsequent bill that levied what critics called a “poll tax.”

The questioning by the judges for the U.S. District Court of Appeals in Atlanta went to the heart of the battle over Amendment 4, which voters passed in 2018. The justices appeared critical of the requirement passed by the Legislature last year that felons pay back all court fees, fines and restitution to victims before being allowed to vote.

The tacked-on legislative requirement will likely prevent hundreds of thousands of felons from voting because they can’t afford to immediately pay back what is often $500 or more in fees….

Judge Lanier Anderson noted that under Patterson’s and the bill’s interpretation of Amendment 4, two felons could receive the exact same punishment for the exact same crime, yet one might vote before the other if he or she has more money.

“It’s precisely the same situation, except for punishment on the basis of poverty,” Anderson said.

“In one case, justice has been done,” Patterson responded. “In the other case, it has not.”
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Posted in felon voting<https://electionlawblog.org/?cat=66>


Michigan: “Benson, Detroit clerk press for early processing of absentee ballots”<https://electionlawblog.org/?p=109186>
Posted on January 28, 2020 2:13 pm<https://electionlawblog.org/?p=109186> by Rick Hasen<https://electionlawblog.org/?author=3>

Detroit News<https://www.detroitnews.com/story/news/local/detroit-city/2020/01/28/benson-detroit-clerk-press-early-absentee-ballot-processing/4596454002/>:

Michigan Secretary of State Jocelyn Benson is advocating for legislative changes that will allow local clerks to process an anticipated uptick in absentee voter ballots ahead of the first statewide election since new laws went into effect, expanding options to vote.

Benson told Detroit’s City Council in a Tuesday appearance that she expects more individuals will turn out to vote due to same-day registration and that absentee voting in Detroit alone will at least be doubled. The voting changes, she added, increase the “time, stress, and pressure” for local clerks to “deliver results.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


--
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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