[EL] ELB News and Commentary 7/9/20

Thu Jul 9 20:52:22 PDT 2020

What is Facebook Going to Do About Voter Suppression on Its Site?<https://electionlawblog.org/?p=112956>
Posted on July 9, 2020 8:45 pm<https://electionlawblog.org/?p=112956> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT interview with Rashad Robinson<https://www.nytimes.com/2020/07/09/opinion/facebook-civil-rights-robinson.html>:

Right, but I guess what I’m saying is that it seems like it’s just another cycle like we’ve had before. They’ll get some bad P.R. but see few consequences. Personally, as a journalist I struggle at where to go with Facebook. It seems tinkering with banning a group here or an ad here isn’t going to cut it.

Honestly, there is an election and I need to get them to enforce the policies on the books before the fall.

I need them to have some real rules around elections and voter suppression posts that actually will apply to Trump and other politicians so he doesn’t do anything dangerous on Election Day or before. I have a bunch of scenarios in my head around Election Day.

Like what?

Like, claiming victory early. Claiming tons of people are voting illegally and threatening that armed guards will show up. Or claiming discrepancies in turnout that don’t exist. Or signaling and calling on his base to do something like show up to polls and intimidate voters. That’s what his whole ‘looters and shooters’ post was about.

And I had to really explain that looters and shooters post to Mark on two separate occasions. And I had to say, “This conversation right here is the problem with you all not having any expertise in race.”

[A draft of the civil rights audit obtained by <https://www.nytimes.com/2020/07/08/opinion/facebook-civil-rights-audit.html> The New York Times cited this post: “After the company publicly left up the looting and shooting post, more than five political and merchandise ads have run on Facebook sending the same dangerous message that ‘looters’ and ‘Antifa terrorists’ can or should be shot by armed citizens.”]

Can you say more about that conversation?

We got into it around looters and shooters. They were trying to explain to me their policies and suggesting this was a head of state merely talking about the use of state force. And I was like, “Was that really what he was doing? Was it that or was it signaling or dogwhistling?”

I referenced the history of this language and how Trump has repeatedly cheered on his white male supporters who have showed up to protest situations strapped with guns. Trump has already called vote by mail illegal, which isn’t true. This is just another example of the dangerous ways the Facebook policies and algorithms are weaponized against us when elected leaders are allowed to lie and even incentivized to do so. I have to keep hope that we can get through to Mark and his team and that there’s potential for some new policies around voter suppression.
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Posted in social media and social protests<https://electionlawblog.org/?cat=58>

Breaking: California State Appeals Court Sides with City of Santa Monica in Reversing in California Voting Rights Act Case, With Potentially Big Implications<https://electionlawblog.org/?p=112954>
Posted on July 9, 2020 5:41 pm<https://electionlawblog.org/?p=112954> by Rick Hasen<https://electionlawblog.org/?author=3>

Back in February 2019, as noted on this blog,<https://electionlawblog.org/?p=103649> a California trial court held that the City of Santa Monica violated both the California Voting Rights Act and the California Constitution by continuing to use at large elections for its elections for the city council. The court found the CVRA violation because of the presence of racially polarized voting in the city (the minority Latino population has different voting preferences than the white majority) and that the city enacted its at large law in an intentionally discriminatory way, violating the state constitution’s equal protection clause. The court ordered new district elections, which an appeals court temporarily stayed as the appeal moved forward.

Today a unanimous state appeals court reversed the trial court ruling <https://www.courts.ca.gov/opinions/documents/B295935.PDF> on both grounds, siding with the City of Santa Monica.

On the question of violating the CVRA, the appeals court said that the trial court made a legal error. It said that plaintiffs alleging a CVRA violation not only had to prove racially polarized voting, but had to prove that this led to a dilution of the vote which affected the political power of the minority of the city. This is somewhat of a surprise; I had understood the CVRA as not requiring such proof, which is why I thought it <https://electionlawblog.org/?p=111649> was somewhat vulnerable to a federal constitutional challenge as a race-based remedy that could be found by SCOTUS conservatives to violate the U.S. Constitution’s equal protection clause.

It strikes me that the appeals court decision engages in a pretty uncharitable reading of the relevant part of the statute (section 14027), which reads in pertinent part: that plaintiffs must prove “the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election, as a result of the dilution or the abridgment of the rights of voters” who belong to a protected class.” The appeals court says there was no proof of “dilution” but it is dilution of the ability to influence the election, and that seems a very low bar. (The appeals court has a response to that, which you can read.)

This first part of the opinion, if it withstands further review at the state Supreme Court, is likely to lead many more California cities to resist lawsuits aimed at forcing the elimination of at large districts. (It might also cause the California legislature to rework part of the statute to make it easier for plaintiffs to win these cases.)

The appeals court was even less charitable of the trial court’s factual finding as to intentional vote dilution in Santa Monica. Generally speaking factual findings are reviewed under a very deferential standard in the appeals court. The appeals court tries to dance around this standard by saying it can review the evidence independently, but that seems questionable here. The plaintiffs’ expert historian, Morgan Kousser, presented lots of evidence about intent, which the appeals court reviewed with no deference whatsoever.

This second part of the ruling is very specific to the state of Santa Monica, but does demonstrate that some courts are going to be very wary of inferring racially discriminatory intent from mostly documentary evidence.

In short, this is a big loss for voting rights plaintiffs under the CVRA, and it enunciates a standard that, if it holds, will make these cases much more like federal Voting Rights Act cases.
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Posted in CVRA<https://electionlawblog.org/?cat=124>, Voting Rights Act<https://electionlawblog.org/?cat=15>

“Georgia tries to avoid calamity, fix election problems”<https://electionlawblog.org/?p=112952>
Posted on July 9, 2020 3:26 pm<https://electionlawblog.org/?p=112952> by Rick Hasen<https://electionlawblog.org/?author=3>

AJC<https://www.ajc.com/news/state--regional-govt--politics/avoiding-calamity-georgia-tries-fix-election-problems/2FwWobhzstM60m7nEtYNkO/>:

The Georgia Secretary of State’s Office is working with county elections officials to avoid a repeat of June’s chaotic primary elections that included hours-long lines to vote.

Poll worker jobs will be advertised through social media, newspaper and radio. Tech experts will be dispatched<https://www.ajc.com/news/state--regional-govt--politics/changes-georgia-elections-proposed-avoid-repeat-november/Uf9Lwi0tNz3QkGvfqY89RI/> to set up voting equipment. State election officials will tell counties where precincts need to be added.

These efforts are designed to help county election offices prevent problems<https://www.ajc.com/news/state--regional-govt--politics/voting-machines-and-coronavirus-force-long-lines-georgia-voters/VajM2D3aSHALhCz7KwDrpJ/> in primary runoffs Aug. 11 and the presidential election Nov. 3, when election day turnout is expected to be three times higher than the primary.

Whether the measures will work depends on election officials’ ability to get staff hired and trained, add voting locations and manage the ongoing threat of the coronavirus pandemic, which contributed to extensive wait times because of social distancing requirements….

Some of the longest lines in Fulton County came at consolidated polling places after some longstanding precincts became unavailable<https://www.ajc.com/news/state--regional-govt--politics/more-voters-fewer-polls-and-virus-risk-challenge-primary-voting/IWJCT6VzEgdhCqnZ7ZmIdN/> during the coronavirus pandemic. Consolidated polling places like Park Tavern in Midtown became a precinct for 16,000 voters.Voters reported waiting as long as four hours to vote at Fulton precincts, some standing through passing rain storms and oppressive humidity in order to cast a ballot.

Fulton has received referrals for new poll workers through the state’s program, county spokeswoman Jessica Corbitt said.

Cobb County, which extended voting hours at 19 precincts because of delayed starts and other issues, has also received poll worker referrals. The county’s poll workers will have access to a training webinar, also provided as part of the secretary of state’s initiative, said Elections Director Janine Eveler.

An upcoming report from the secretary of state’s office will color-code each of Georgia’s 2,600-plus precincts based on their number of voters, equipment and precinct sizes, labeling them as green, yellow, red or black. Locations categorized as red or black need substantial improvements, and some may need to be split into a new precinct to ease the load.
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Posted in election administration<https://electionlawblog.org/?cat=18>

The Supreme Court Performed Pretty Well During the Pandemic, Except When It Came to Voting Rights, Where Its Record is Abysmal<https://electionlawblog.org/?p=112943>
Posted on July 9, 2020 12:27 pm<https://electionlawblog.org/?p=112943> by Rick Hasen<https://electionlawblog.org/?author=3>

My thread starts here<https://twitter.com/rickhasen/status/1281301642562818050>:
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>

--
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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