[EL] ELB News and Commentary 7/17/20
Rick Hasen
rhasen at law.uci.edu
Thu Jul 16 21:17:34 PDT 2020
“What the Twitter Hack Revealed: An Election System Teeming With Risks”<https://electionlawblog.org/?p=113197>
Posted on July 16, 2020 9:14 pm<https://electionlawblog.org/?p=113197> by Rick Hasen<https://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2020/07/16/us/politics/twitter-hack.html>
Over the past year government officials have raced to help states replace voting machines that leave no paper trail, and to harden vulnerable online voter registration systems that many fear Russia, or others, could hijack to trigger chaos on Election Day.
But this week, the country got a startling vision of other perils in political disinformation — and how many other ways there may be to manipulate turnout, if not votes.
The breach by a hacker or hackers who bored into the command center of Twitter<https://www.nytimes.com/2020/07/15/technology/twitter-hack-bill-gates-elon-musk.html> on Wednesday — seizing control of Joseph R. Biden Jr.<https://www.nytimes.com/interactive/2020/us/elections/joe-biden.html>’s and Barack Obama’s blue-checked accounts, among many others — served as a warning that some of the most critical infrastructure that could influence the election is not in the hands of government experts, and is far less protected than anyone assumed even a day ago.
The hackers probably did the nation a favor. With a crude scheme to deceive users into thinking that Mr. Biden and Mr. Obama were asking them for donations in Bitcoin — which sent more than $120,000 flowing into their cryptocurrency wallets — they revealed how simple it may be to imitate the powerful and the trusted.
Had saboteurs infiltrated Twitter on Nov. 3 instead of in the middle of July, with the goal of upending the election, the political fallout could have been quite different. False warnings of a coronavirus outbreak in key precincts in Wisconsin or Pennsylvania could have untold impact on a close vote in a battleground state. Deceptive tweets from political party accounts saying polling places were closed could sow confusion.
Or imagine a fake declaration, under Mr. Biden’s account, that he was dropping out of the race — a nightmare scenario for Democrats that some federal officials said they were talking about hypothetically among themselves on Wednesday night as the scope of Twitter’s failure became clear.
Similar war gaming about social media and election interference has played out in classified simulations conducted by the Department of Homeland Security, which is responsible for securing the 2020 election, and at Fort Meade, Md., home of the National Security Agency and United States Cyber Command. The results have never fully been made public.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, chicanery<https://electionlawblog.org/?cat=12>, social media and social protests<https://electionlawblog.org/?cat=58>
“As Election Nears, Trump’s White House Grows Bolder in Flouting Ethical Norms”<https://electionlawblog.org/?p=113195>
Posted on July 16, 2020 9:09 pm<https://electionlawblog.org/?p=113195> by Rick Hasen<https://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2020/07/16/us/politics/trump-goya-ivanka.html>
When President Trump holds official taxpayer-funded events outside Washington, his audiences are treated to campaign-style speeches and rock music playlists drawn from his political rallies. His appearances at the White House, most recently a rambling Rose Garden news conference<https://www.nytimes.com/2020/07/14/us/politics/trump-news-conference.html?fbclid=IwAR3ztzy09muUUd91tiAoZL-C_rRdGiVBoSa5bHkbP0auF7H2KjU1gPL9WIM>, are increasingly devoid of policy and filled with attacks on the “radical left” and the presumptive Democratic presidential nominee, former Vice President Joseph R. Biden Jr.
And on Tuesday, Mr. Trump’s eldest daughter and senior adviser, Ivanka Trump, a White House employee, posted a photograph online celebrating Goya Foods, whose chief executive had recently praised her father, in what government ethics experts called a clear violation of federal law. The president followed up on Wednesday with his own photograph, featuring the company’s products arrayed on the Resolute Desk in the Oval Office.
Mr. Trump and his advisers have long tested — and often crossed — the boundaries between the official and the political. The Office of Special Counsel, an independent government watchdog agency, has found 13 Trump officials in violation of the Hatch Act, the 1939 law limiting the political activities of government employees, according to Citizens for Responsibility and Ethics in Washington, or CREW. Staff members with the watchdog group said they could recall only two such instances under President Barack Obama.
But with the general election in November little more than 100 days away, the coronavirus quashing Mr. Trump’s raucous rallies, and the White House lacking a clear policy agenda, the Trump administration seems almost entirely unconstrained by traditional divisions between politics and governance.
“Every White House I have known until this one — of both parties — has rigorously worked to separate campaign activity and official business,” said Trevor Potter, a Republican and a former chairman of the Federal Election Commission who is now the president of the Campaign Legal Center.
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Posted in conflict of interest laws<https://electionlawblog.org/?cat=20>
“How Americans cast ballots in November will likely be decided by courts”<https://electionlawblog.org/?p=113193>
Posted on July 16, 2020 8:53 pm<https://electionlawblog.org/?p=113193> by Rick Hasen<https://electionlawblog.org/?author=3>
The Ground Truth Project reports<https://thegroundtruthproject.org/how-americans-cast-ballots-in-november-will-likely-be-decided-by-courts/>.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>
How Appealing Rounds Up Stories on SCOTUS Florida Felon Disenfranchisement Case<https://electionlawblog.org/?p=113191>
Posted on July 16, 2020 8:52 pm<https://electionlawblog.org/?p=113191> by Rick Hasen<https://electionlawblog.org/?author=3>
Find it here<https://howappealing.abovethelaw.com/2020/07/16/#125657>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“USC CID Voting Location Siting Tool is Expanding to Ten States”<https://electionlawblog.org/?p=113185>
Posted on July 16, 2020 1:59 pm<https://electionlawblog.org/?p=113185> by Rick Hasen<https://electionlawblog.org/?author=3>
Announcement via email:
The CID Voting Location Siting Toolis Expanding!
The Center for Inclusive Democracy (CID), formerly known as the California Civic Engagement Project, is expanding its Voting Location Siting Tool<http://r20.rs6.net/tn.jsp?f=001c7hfm996tMR5rpXwIczBcZ3KOg3kUZEOFhVCxSvEuH8kDRUJCCkkCJgxtBK5JsHQaWz08NJB9NjmZtba08qXnOpdxwMWsctCpiERcfr4_6qTl9q_7ZydnU2Svj1Y2jZG1h2p2WKnCmlcAFjzSmiLaUS4mTmYd_fxg808X5cE0ClIX9TIb1B-iaQipkJUWiQtBYAo_cGvNkmAXLE0pGBiHF8ZrdiLI_XQ40KJWO9meiFUg88NYWoqG-Xr3OHzmeatKeozA8292FJaV6FRDDejPkrSPV28OC6ajgb0dWov2C3DTBZsdmiSnZe4lXXY8idbdTyyVklx1uSpEWgfivf02-UJK2UHTB5tj5EmflngRmeOWdL195NIxQ==&c=cmvAvtpwPoAX9ol9VHjyr0AU8RgXjPaVNdRemcG5G3hl9b2lZspClA==&ch=z1mHAw6qSCqx1XTE_ISfi3fpL8yvs5RsKaOqy7vkbbuyfasYBTzz-w==> to serve a total of ten states representing 43% of the U.S. population: Arizona, California, Colorado, Florida, Georgia, Michigan, North Carolina, Pennsylvania, Texas, and Wisconsin. Originally developed in 2018 by CID, a neutral academic research center at the USC Sol Price School of Public Policy, this growing public resource will help inform the equitable siting of U.S. voting locations in the November 2020 General Election. Currently, the Siting Tool is available for California and Colorado. The Siting Tool will be expanded to all California counties and launched in Arizona, Florida, Georgia, Michigan, North Carolina, Pennsylvania, Texas, and Wisconsin over the summer and early fall of 2020.
The Voting Location Siting Tool’s user-friendly interactive web-based mapping system identifies areas within a half mile in diameter where vote centers and polling places would likely have the most success in serving voters. Areas are identified through a facility allocation model, incorporating local demographic and voting data. County election officials are able to find specific locations for consideration within these half-mile diameter areas using local knowledge of their county’s needs.
The success of the CID Voting Location Siting Tool has been noted<http://r20.rs6.net/tn.jsp?f=001c7hfm996tMR5rpXwIczBcZ3KOg3kUZEOFhVCxSvEuH8kDRUJCCkkCJgxtBK5JsHQwo_PxWjVrk2N43e-NgVkUxOJ1VOy3_0y9q2-h7pW8eM52ELYHUjoaNGNOv4l_oTHYPqTCbFf2xXB2FDC_8IsQM-caIDS-cVU0Xq-RB1jLOwat5R_oMybkrDSxNYsnK1ZRntfNZSArUwNEJgf5CIBfHhPm0tgXy4BQ9Ww0otLqTSmETNj7s2JFufEUcmb8ZEhTkgNfbhCXBDykK2vMLZNmyowJaoe4aKr29y9Qvni70MHgKO0U_U1e0hFBYy3ocx8ApvECvVGqXnSQRLOBOjwaFD0zcnnJKljfpAzdkAd3HD9q2PvZJL9e03HSxkZBYtX&c=cmvAvtpwPoAX9ol9VHjyr0AU8RgXjPaVNdRemcG5G3hl9b2lZspClA==&ch=z1mHAw6qSCqx1XTE_ISfi3fpL8yvs5RsKaOqy7vkbbuyfasYBTzz-w==> by many registrars and voter advocacy groups working toward the equitable siting and implementation of voting locations. The California and Colorado Secretaries of State currently recommend that their state election officials use the tool in their siting allocation process.
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Posted in election administration<https://electionlawblog.org/?cat=18>
July 20 Report Event: “Lift Every Voice: The Urgency of Universal Civic Duty Voting”<https://electionlawblog.org/?p=113183>
Posted on July 16, 2020 1:54 pm<https://electionlawblog.org/?p=113183> by Rick Hasen<https://electionlawblog.org/?author=3>
Announcement via email:
The Universal Voting Working Group is releasing its report on July 20th. “Lift Every Voice: The Urgency of Universal Civic Duty Voting” is the result of almost two years of work by a diverse group of 25 scholars, advocates, and election specialists. The effort is a joint project of the Brookings Institution and the Ash Center of the Harvard Kennedy School. It has been co-chaired by Miles Rapoport and E.J. Dionne.
The Working Group examined the idea that the United States should consider participation in elections as a requirement of citizenship, as we currently do with the requirement of jury service, and as 26 countries around the globe currently do with regard to voting— Australia since 1924. It has not received any real discussion in the United States; the group hopes this will be a starting point.
The Brookings-Ash Center launch event will be on Monday, July 20th at 1:00 p.m. EDT. The discussion will feature the release of the report and comments on it by members of the Working Group. Here is the link<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.brookings.edu_events_lift-2Devery-2Dvoice-2Dthe-2Durgency-2Dof-2Duniversal-2Dcivic-2Dduty-2Dvoting_&d=DwMF-g&c=WO-RGvefibhHBZq3fL85hQ&r=pJzTKexUL2tP2q009L9Lw16G0xyfPitcTOewOk_qb1g&m=V-nT2VFrq7hwm8UjF1_J-Bys37djidrLWBpQOgfWWbY&s=Sz2qnmKLH2AZjZ68weZ_tZDY_KkKFuAIb-yk-llHs6U&e=> to register for the event. The report itself will be available on the Brookings and Ash Center websites once it is released.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Tens of thousands of mail ballots have been tossed out in this year’s primaries. What will happen in November?”<https://electionlawblog.org/?p=113181>
Posted on July 16, 2020 1:52 pm<https://electionlawblog.org/?p=113181> by Rick Hasen<https://electionlawblog.org/?author=3>
WaPo reports.<https://www.washingtonpost.com/politics/tens-of-thousands-of-mail-ballots-have-been-tossed-out-in-this-years-primaries-what-will-happen-in-november/2020/07/16/fa5d7e96-c527-11ea-b037-f9711f89ee46_story.html?wpmk=MK0000200>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“The White House’s claims of rampant voter fraud are getting embarrassingly lazy”<https://electionlawblog.org/?p=113178>
Posted on July 16, 2020 1:50 pm<https://electionlawblog.org/?p=113178> by Rick Hasen<https://electionlawblog.org/?author=3>
Philip Bump analysis.<https://www.washingtonpost.com/politics/2020/07/16/white-houses-claims-rampant-voter-fraud-are-getting-embarrassingly-lazy/?utm_source=rss&utm_medium=referral&utm_campaign=wp_politics>
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>, Uncategorized<https://electionlawblog.org/?cat=1>
Breaking: Supreme Court, on Divided Vote, Refuses to Vacate Stay in Florida Felon Reenfranchisement Case, Meaning Potentially Hundreds of Thousands of Former Felons Reenfranchised by Florida Voters Won’t Get to Vote in November<https://electionlawblog.org/?p=113169>
Posted on July 16, 2020 10:37 am<https://electionlawblog.org/?p=113169> by Rick Hasen<https://electionlawblog.org/?author=3>
With at least three of the Court’s four liberal Justices dissenting, the Supreme Court refused to intervene<https://electionlawblog.org/wp-content/uploads/19A1071-order.pdf> in a case involving Florida felon voting rights, with big implications for voting in November.
The procedural path of this case is complex, and laid out well in Justice Sotomayor’s dissent for herself and Justices Kagan and Ginsburg. (Justices don’t always note their dissents in these cases. It is possible that the other liberal on the Court, Justice Breyer, also dissented but did not note it. He might have voted with the majority or he might have been out and not vote on this at all. Or a conservative Justice could have dissented and not noted it, although that seems highly unlikely given the pattern I describe below.)
Speaking very roughly, voters in Florida overwhelmingly and on a bipartisan vote approved a constitutional amendment that restored Florida felon voting rights after the completion of their sentences. (This affects, as I understand it, over 750,000 and potentially up to 1 million people.) The Florida legislature then came back and passed a law saying that reenfranchisement could not happen until these felons had paid all their outstanding fees and fines connected to their service, but Florida does not have a central list of such fees and fines. This meant that ex-felons seeking to register if they thought they had no outstanding fines would be risking committing a new felony if they guessed wrong. The trial court found this a due process violation, and that seems a very strong argument. (The argument that this Florida law also is a poll tax on the indigent seems much more uncertain.)
The court issued an injunction barring Florida from enforcing the law, and an Eleventh Circuit panel expedited consideration of the case for oral argument. Then the entire 11th Circuit took the case en banc and issued a stay of the district court’s order. This meant that Florida could enforce its law until the appeal was resolved. Given the timing of the appeal as set by the en banc court, it likely would be too late for these voters to register to vote in time for November’s elections.
The Supreme Court has now left that 11th Circuit stay order in place, once again siding against voting rights during a pandemic, and this time when the lower court had resolved this voting dispute with plenty of time before the November elections.
This is a consistent pattern at the Supreme Court. Conservatives on the Court have sided against voters now in emergency election-related litigation (on the so-called shadow docket) in every election case this season: Wisconsin, Alabama, Texas, and now Florida. Liberals have dissented in each of these cases (except perhaps Breyer in this one). I’ve argued that this is a very disturbing pattern<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3604668> for November. It also shows that Chief Justice Roberts is no swing voter when it comes to voting rights.
This case is perhaps the most consequential when it comes to election outcomes; Florida is a perennial swing state and the number of voters affected by this ruling is significant. But this case is even more important for what it says about the Court’s failure to protect voting rights in a pandemic. As Justice Sotomayor concluded her dissent:
This Court’s inaction continues a trend of condoning disfranchisement. Ironically, this Court has wielded Purcell as a reason to forbid courts to make voting safer during a pandemic, overriding two federal courts because any safety-related changes supposedly came too close to election day. See Republican National Committee v. Democratic National Committee, 589 U. S. ___ (2020) (per curiam). Now, faced with an appellate court stay that disrupts a legal status quo and risks immense disfranchisement—a situation that Purcell sought to avoid—the Court balks.
[This post has been updated.]
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Posted in court decisions<https://electionlawblog.org/?cat=129>, felon voting<https://electionlawblog.org/?cat=66>, Supreme Court<https://electionlawblog.org/?cat=29>
“As 2020 election heated up, Google banned employee-led voter registration drives”<https://electionlawblog.org/?p=113167>
Posted on July 16, 2020 10:27 am<https://electionlawblog.org/?p=113167> by Rick Hasen<https://electionlawblog.org/?author=3>
Protocol reports.<https://www.protocol.com/google-ban-voter-registration>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Now Available: 2020 Supplement to Lowenstein, Hasen, Tokaji, & Stephanopoulos, Election Law–Cases and Materials (6th Edition)<https://electionlawblog.org/?p=113162>
Posted on July 16, 2020 9:17 am<https://electionlawblog.org/?p=113162> by Rick Hasen<https://electionlawblog.org/?author=3>
Election Law 2020 Supplement
The 2020 Supplement<https://electionlawblog.org/wp-content/uploads/2020-election-law-supp-final.pdf> to Lowenstein, Hasen, Tokaji, & Stephanopoulos, Election Law–Cases and Materials<https://cap-press.com/books/isbn/9781531004729/Election-Law-Sixth-Edition> (6th ed.) is up-to-date through the end of the Supreme Court’s October 2019 term ending July 2020. The new material includes coverage of the Supreme Court’s most recent cases on campaign contributions (Thompson v. Hebdon), bribery (Kelly v. United States), and the Electoral College (Chiafalo v. Washington), discussion of COVID-19-related election litigation and election administration changes, and a completely rewritten section on partisan gerrymandering, including an edited version of the Supreme Court’s June 2019 decision in Rucho v. Common Cause. It also includes coverage of cases and developments concerning the census, partisan gerrymandering, voter purges, voter identification laws, political apparel at the polling place, campaign finance, bribery, and Voting Rights Act challenges to redistricting.
You may download the supplement at this link<https://electionlawblog.org/wp-content/uploads/2020-election-law-supp-final.pdf>.
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Posted in pedagogy<https://electionlawblog.org/?cat=23>
“America has to count on more than prayer in the case of close election”<https://electionlawblog.org/?p=113160>
Posted on July 16, 2020 8:52 am<https://electionlawblog.org/?p=113160> by Rick Hasen<https://electionlawblog.org/?author=3>
Ned Foley oped<https://thehill.com/opinion/campaign/507643-america-has-to-count-on-more-than-prayer-in-the-case-of-close-election>:
So, how can we improve the odds that any overtime this year ends like 1884 and 1916, instead of 1876 and 2000? It starts with a commitment to state procedures that certify vote counts, several weeks after Election Day, as genuinely reflecting the choice made by the eligible voters participating in the election. These procedures permit candidates to challenge questionable ballots. Candidates should use these procedures with whatever evidence they have. No candidate should condemn a whole category of ballots, permissible under state law, as inherently unreliable<https://www.nytimes.com/2020/06/24/us/politics/trump-vote-by-mail.html>.
If there are concerns about details of ballot-review procedures in particular states, the campaigns should raise them now, to be addressed before November. The American Law Institute took a long look at this topic and, with the input of recount lawyers from both major parties, developed a bipartisan set of principles<https://www.ali.org/news/articles/now-available-principles-law-election-administration/> to guide reform. (Disclosure: I worked on these principles for the ALI.) For any revision of these state laws in the next few months, the ALI principles provide an off-the-shelf source. Otherwise, the campaigns should accept existing laws and be prepared to honor results produced using these procedures.
A pipedream, you say, to expect candidates this year to credit adverse tallies when certified? If so, then Congress had better get prepared. Contestation over state-certified results could extend overtime into January, when Congress meets in joint session to receive the votes from the states. There are two ways in which Congress’s own rules for this are deficient and worth redressing in advance….
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Political Participation, Expressive Association, and Judicial Review”<https://electionlawblog.org/?p=113158>
Posted on July 16, 2020 8:50 am<https://electionlawblog.org/?p=113158> by Rick Hasen<https://electionlawblog.org/?author=3>
Joshua Sellers has posted this draft<https://privpapers.ssrn.com/sol3/papers.cfm?abstract_id=3616447&dgcid=ejournal_htmlemail_u.s.:constitutional:law:interpretation:judicial:review:ejournal_abstractlink> on SSRN (American University Law Review). Here is the abstract:
Increasingly novel legal conflicts over electoral participation and voting rights are on the rise. For instance, multiple aspects of Georgia’s election system have been challenged, including the state’s “exact match” policy. An Arizona law imposing harsh penalties on initiative petition circulators who fail to respond to subpoenas is the subject of an ongoing lawsuit. And a Tennessee law that strictly regulated voter registration drives was recently enjoined and ultimately repealed. As states implement unprecedented methods of election administration, courts, in turn, are tasked with determining just what the “right to vote” entails and to what extent it encompasses efforts by organizations to engage voters in the political process. This Essay explores this dynamic and considers how more intensive methods of election administration may, paradoxically, result in a broader conception of the right to vote that the First Amendment expressly protects.
Part I of this Essay summarizes the unresolved — and potentially dispositive — doctrinal debate over the appropriate level of judicial scrutiny to be applied to state laws implicating both voting and expressive association. Part II examines the doctrinal irresolution in the context of two recent cases, Miracle v. Hobbs in Arizona and League of Women Voters v. Hargett in Tennessee. Viewed together, these cases illustrate the contingent nature of organizations’ ability to engage voters; an ambiguity of great consequence as we approach Election 2020. Part III outlines the short and long-term political significance of whether a capacious or circumscribed conception of the right to vote in this context prevails.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“The Plot Against America: The GOP’s Plan to Suppress the Vote and Sabotage the Election”<https://electionlawblog.org/?p=113155>
Posted on July 16, 2020 7:53 am<https://electionlawblog.org/?p=113155> by Rick Hasen<https://electionlawblog.org/?author=3>
Andy Kroll<https://www.rollingstone.com/politics/politics-features/trump-campaign-2020-voter-suppression-consent-decree-1028988/> for Rolling Stone.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Why it’s time for every state to enact its own voting rights law”<https://electionlawblog.org/?p=113153>
Posted on July 16, 2020 7:45 am<https://electionlawblog.org/?p=113153> by Rick Hasen<https://electionlawblog.org/?author=3>
Ruth Greenwood and Roxana Norouzi in The Fulcrum<https://thefulcrum.us/voting/voting-rights-act>.
MORE<https://campaignlegal.org/update/clc-report-encourages-every-state-pass-its-own-voting-rights-act> in this CLC report.
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>
“The Cybersecurity 202: Twitter breach is another warning shot for election security”<https://electionlawblog.org/?p=113151>
Posted on July 16, 2020 7:43 am<https://electionlawblog.org/?p=113151> by Rick Hasen<https://electionlawblog.org/?author=3>
WaPo reports<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2020/07/16/the-cybersecurity-202-twitter-breach-is-another-warning-shot-for-election-security/5f0f7e14602ff1080719cbdc/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“‘Outright Lies’: Voting Misinformation Flourishes on Facebook”<https://electionlawblog.org/?p=113147>
Posted on July 16, 2020 7:09 am<https://electionlawblog.org/?p=113147> by Rick Hasen<https://electionlawblog.org/?author=3>
ProPublica<https://www.propublica.org/article/outright-lies-voting-misinformation-flourishes-on-facebook>:
On April 3, Terrence K. Williams, a politically conservative actor and comedian who’s been praised<https://www.youtube.com/watch?v=W8i5RbgmNF4> by President Donald Trump, assured his nearly 3 million followers on Facebook that Democrats would light ballots on fire or throw them away. Wearing a red “Keep America Great” hat, Williams declared, “If you mail in your vote, your vote will be in Barack Obama’s fireplace.” The video has been viewed more than 350,000 times.
On May 8, Peggy Hubbard, a Navy veteran and police officer who this year sought the Republican nomination for a U.S. Senate seat from Illinois, warned on Facebook that the country was heading toward civil war. “Your democracy, your freedom is being stripped away from you, and if you allow that then everything this country stood for, fought for, bled for is all in vain.” The cause? California’s recent expansion of voting by mail: “The only way you will be able to vote in the upcoming election in November is by mail only,” Hubbard said. The video has attracted more than 209,000 views.
On June 27, Pamela Geller, an anti-Muslim activist with nearly 1.3 million followers, weighed in. “Mail-in ballots guarantee that the Democrats will commit voter fraud,” she said<https://www.facebook.com/193266897438/posts/10159585338902439> on Facebook.
There’s no evidence for any of these statements. While California will mail absentee ballots to all registered voters, polling places will also be available. Voter fraud is exceedingly rare, including with mail-in ballots. A recent Washington Post analysis<https://www.washingtonpost.com/politics/minuscule-number-of-potentially-fraudulent-ballots-in-states-with-universal-mail-voting-undercuts-trump-claims-about-election-risks/2020/06/08/1e78aa26-a5c5-11ea-bb20-ebf0921f3bbd_story.html> analyzed three states with all-mail elections — Colorado, Oregon and Washington — and found just 372 potential irregularities among 14.6 million votes, or 0.0025%.
Facebook’s community standards<https://www.facebook.com/communitystandards/coordinating_harm_publicizing_crime/> ban “misrepresentation of who can vote, qualifications for voting, whether a vote will be counted, and what information and/or materials must be provided in order to vote.” But an analysis by ProPublica and First Draft<https://firstdraftnews.org/>, a global nonprofit that researches misinformation, shows that Facebook is rife with false or misleading claims about voting, particularly regarding voting by mail, which is the safest way of casting a ballot during the pandemic. Many of these falsehoods appear to violate Facebook’s standards yet have not been taken down or labeled as inaccurate. Some of them, generalizing from one or two cases, portrayed people of color as the face of voter fraud.
The false claims, including conspiracy theories about stolen elections or outright misrepresentations about voting by mail by Trump and prominent conservative outlets, are often among the most popular posts about voting on Facebook, according to a review of engagement data from CrowdTangle, a Facebook-owned analytics tool….
Breitbart, a conservative website that has long championed Trump, has had more engagement on its voting-related stories than any other publisher from April until July 1, according to our analysis. In fact, voting-related stories on Breitbart have garnered more interactions since April than equivalent articles by The Washington Post, The New York Times and NBC News combined. Many of the Breitbart posts are misleading at best. “Obama ratchets up Democrats’ Cheat-by-Mail scheme!” read one post<https://www.facebook.com/95475020353/posts/10165624466575354>, linking to a story that misleadingly framed how often voter fraud occurs. Another post declared<https://www.facebook.com/95475020353/posts/10165236391900354>: “Flooding the nation with ballots that can be stolen, sold, discarded, and forged—THAT’s the path to Leftist victory in November.”
In a video<https://www.facebook.com/watch/?v=506055596777811> by Fox Nation, Fox News’ streaming service, that has been viewed nearly 500,000 times, host Tomi Lahren said, “I firmly believe the only way Donald Trump loses in November is because of voter fraud.” In the video, Lahren falsely claims that voter fraud is rampant in California. “You think coronavirus is a crisis, wait till you see the voter fraud epidemic we have here in California. And mark my words it’s heading to your state like a diseased bat out of hell.” (There’s no evidence that voter fraud is rampant in California, or in any other state.)
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Posted in social media and social protests<https://electionlawblog.org/?cat=58>
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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