[EL] ELB News and Commentary 6/2/20
Rick Hasen
rhasen at law.uci.edu
Tue Jun 2 09:12:56 PDT 2020
Huge Congratulations to Dan Tokaji, Named New Dean of Wisconsin Law<https://electionlawblog.org/?p=111840>
Posted on June 2, 2020 9:08 am<https://electionlawblog.org/?p=111840> by Rick Hasen<https://electionlawblog.org/?author=3>
I’m very pleased to share the news<https://news.wisc.edu/university-of-wisconsin-law-school-dean-named/> that my friend, co-author, and co-blogger Dan Tokaji has been named the new dean of the University of Wisconsin Law School. Wisconsin is lucky to have Dan, who is so smart, judicious, patient, and modest.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
True the Vote Goes Full Nativist, Flirts with Anti-Semitism, Accusing “Globalists” of “financing ANTIFA terrorists to riot in the streets”<https://electionlawblog.org/?p=111836>
Posted on June 2, 2020 8:58 am<https://electionlawblog.org/?p=111836> by Rick Hasen<https://electionlawblog.org/?author=3>
From their latest email:
[cid:image002.png at 01D638BE.00853580]
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>
“Facebook Employees Stage Virtual Walkout to Protest Trump Posts”<https://electionlawblog.org/?p=111834>
Posted on June 2, 2020 8:54 am<https://electionlawblog.org/?p=111834> by Rick Hasen<https://electionlawblog.org/?author=3>
NYT<https://www.nytimes.com/2020/06/01/technology/facebook-employee-protest-trump.html?action=click&module=Top%20Stories&pgtype=Homepage>:
Hundreds of Facebook employees, in rare public criticism on Monday of their own company, protested executives’ decision not to do anything about inflammatory posts that President Trump had placed on the giant social media platform over the past week.
Many of the employees, who said they refused to work in order to show their support for demonstrators across the country, added an automated message to their digital profiles and email responses saying that they were out of the office in a show of protest….
“The hateful rhetoric advocating violence against black demonstrators by the US President does not warrant defense under the guise of freedom of expression,” one Facebook employee wrote in an internal message board, according to a copy of the text viewed by The New York Times.
The employee added: “Along with Black employees in the company, and all persons with a moral conscience, I am calling for Mark to immediately take down the President’s post advocating violence, murder and imminent threat against Black people.” The Times agreed to withhold the employee’s name.
Mr. Zuckerberg has argued on a number of occasions that Facebook should take a hands-off approach to what people post, including lies from elected officials and others in power. He has repeatedly said the public should be allowed to decide what to believe.
That stand was tested last week when Twitter added fact-check and warning labels to two tweets from the president that broke Twitter’s rules around voter suppression and glorification of violence. But as Twitter acted on Mr. Trump’s tweets, Facebook left his posts on its platform alone<https://www.nytimes.com/2020/05/29/technology/twitter-facebook-zuckerberg-trump.html>. Mr. Zuckerberg said Mr. Trump’s posts did not violate the social network’s rules.
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Posted in social media and social protests<https://electionlawblog.org/?cat=58>
“The Technology 202: Mark Zuckerberg spoke with civil rights leaders about Trump’s posts. It didn’t go well.”<https://electionlawblog.org/?p=111832>
Posted on June 2, 2020 8:48 am<https://electionlawblog.org/?p=111832> by Rick Hasen<https://electionlawblog.org/?author=3>
WaPo<https://www.washingtonpost.com/news/powerpost/paloma/the-technology-202/2020/06/02/the-technology-202-mark-zuckerberg-spoke-with-civil-rights-leaders-about-trump-s-posts-it-didn-t-go-well/5ed55da4602ff12947e81457/>:
Top Facebook executives, including Mark Zuckerberg, spoke with civil rights leaders last night as the company confronts a wave of backlash over its decision not to moderate President Trump’s controversial posts.
But the roughly hour-long call, intended to show the company takes concerns from the black community seriously, only further inflamed tensions.
Color of Change President Rashad Robinson, NAACP Legal Defense Fund president Sherrilyn Ifil and The Leadership Conference on Civil and Human Rights chief executive Vanita Gupta immediately blasted Zuckerberg in a statement following the call.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, social media and social protests<https://electionlawblog.org/?cat=58>
“In Pennsylvania, officials prepare for coronavirus, civil unrest to disrupt Tuesday primary”<https://electionlawblog.org/?p=111830>
Posted on June 2, 2020 8:46 am<https://electionlawblog.org/?p=111830> by Rick Hasen<https://electionlawblog.org/?author=3>
WaPo<https://www.washingtonpost.com/politics/in-pennsylvania-officials-prepare-for-coronavirus-civil-unrest-to-disrupt-tuesday-primary/2020/06/02/96a55c40-a4be-11ea-b619-3f9133bbb482_story.html>:
Election officials across Pennsylvania braced for a chaotic day of voting in Tuesday’s primary, as the convergence of the coronavirus<https://www.washingtonpost.com/health/2020/02/28/what-you-need-know-about-coronavirus/?itid=lk_inline_manual_1> pandemic and protests over the death of George Floyd threaten to close in-person polling locations, even as thousands of voters who requested mail-in ballots still have not received them.
In Philadelphia, city officials said they were working with police and other emergency personnel to prevent violence from disrupting voting. The city planned to open 190 polling places instead of the usual 831, but with a late surge of poll workers canceling their commitments out of fear of unrest, there was no guarantee that even the reduced number of polling sites would open Tuesday morning.
“This was already a difficult task with the pandemic, and the current events have only made that difficult task harder,” said Nick Custodio, a deputy city commissioner.AD
Reached moments before voting was scheduled to begin at 7 a.m., Custodio said election officials were receiving numerous calls, and he could not say whether polling places would open on time.
At the A.W. Christy Recreation Center in predominantly African American West Philadelphia — where 15 separate polling locations were consolidated — voters arrived with mail ballots in hand, unsure of what to do with them. With no ballot dropbox available, officials directed voters to a public library a mile away.
Voting advocates said many voters were showing up at their long-standing voting locations, only to find facilities shuttered and with no signs directing them to a consolidated location. They also said black voters have struggled to vote absentee, largely because of a combination of mistrust about dropping their ballot in the mail and lack of Internet access to understand how to do it.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Republicans Fear Trump’s Criticism of Mail-In Ballots Will Hurt Them”<https://electionlawblog.org/?p=111828>
Posted on June 2, 2020 8:42 am<https://electionlawblog.org/?p=111828> by Rick Hasen<https://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2020/06/02/us/politics/republicans-mail-voting-trump.html>
President Trump<https://www.nytimes.com/interactive/2020/us/elections/donald-trump.html> has relentlessly attacked mail voting, calling it a free-for-all for cheating and a Democratic scheme<https://www.nytimes.com/2020/04/10/us/politics/vote-by-mail.html> to rig elections.
None of the charges are true.
But as eight states and the District of Columbia vote on Tuesday in the biggest Election Day since the coronavirus forced a pause in the primary calendar, it is clear that Mr. Trump’s message has sunk in deeply with Republicans, who have shunned mail ballots<https://www.nytimes.com/2020/04/08/us/politics/republicans-vote-by-mail.html>.
Republican officials and strategists warned that if a wide partisan gap over mail voting continues in November, Republicans could be at a disadvantage, an unintended repercussion of the president’s fear-mongering about mail ballots that could hurt his party’s chances, including his own.
In Pennsylvania, Iowa, Indiana and New Mexico, all states voting on Tuesday that broadly extended the option to vote by mail this year, a higher share of Democrats than Republicans have embraced mail-in ballots.
See also my April 20 NY Daily News oped, GOP War on Mail Ballots May Backfire<https://www.nydailynews.com/opinion/ny-oped-how-to-vote-during-a-pandemic-20200420-spwxu5vkgngwfdwcvyw547zoy4-story.html>.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>
“Election officials contradict Barr’s assertion that counterfeit mail ballots produced by a foreign country are a ‘real’ worry”<https://electionlawblog.org/?p=111826>
Posted on June 2, 2020 8:35 am<https://electionlawblog.org/?p=111826> by Rick Hasen<https://electionlawblog.org/?author=3>
WaPo<https://www.washingtonpost.com/politics/election-officials-contradict-barrs-assertion-that-counterfeit-mail-ballots-produced-by-a-foreign-country-are-a-real-worry/2020/06/02/5ac8d664-a43e-11ea-b619-3f9133bbb482_story.html?wpmk=MK0000200>:
Current and former election administrators said it would be virtually impossible for a foreign country to produce and mail in phony absentee ballots without detection, an issue Attorney General William P. Barr raised as a serious possibility in an interview published Monday.
Barr told <https://www.nytimes.com/2020/06/01/magazine/william-barr-attorney-general.html> the New York Times Magazine that a foreign operation to mail in fake ballots was “one of the issues that I’m real worried about.”
“We’ve been talking about how, in terms of foreign influence, there are a number of foreign countries that could easily make counterfeit ballots, put names on them, send them in,” Barr said. “And it’d be very hard to sort out what’s happening.”
Barr did not offer any evidence of how such a scenario would take place.
Elections officials in multiple states said it would be virtually impossible for a foreign government to achieve what Barr described.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>
“U.S. Supreme Court won’t hear challenge to Montana campaign finance law”<https://electionlawblog.org/?p=111824>
Posted on June 2, 2020 8:31 am<https://electionlawblog.org/?p=111824> by Rick Hasen<https://electionlawblog.org/?author=3>
Bozeman Daily Chronicle:<https://www.bozemandailychronicle.com/news/u-s-supreme-court-wont-hear-challenge-to-montana-campaign-finance-law/article_cf79138e-928c-50b4-a0c6-7335d9345b9e.html>
The U.S. Supreme Court on Monday declined to take up a case<https://www.supremecourt.gov/orders/courtorders/060120zor_g3bi.pdf> that challenged Montana’s law on disclosing the spending for political ads within 60 days of an election.
In August 2019, the 9th U.S. Circuit Court of Appeals upheld Montana’s law<https://helenair.com/news/state-and-regional/govt-and-politics/appeals-court-upholds-montana-campaign-disclosure-law/article_8471b5bb-0aa6-5e33-a3d4-ff01e5a05328.html> that nonprofit groups running ads that mention candidates, political parties or ballot issues in the 60-day window before an election have to report any spending of $250 or more and say who funded their efforts.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, Supreme Court<https://electionlawblog.org/?cat=29>
“Pennsylvania Gov. Tom Wolf extends mail ballot deadlines for one week”<https://electionlawblog.org/?p=111822>
Posted on June 1, 2020 2:49 pm<https://electionlawblog.org/?p=111822> by Rick Hasen<https://electionlawblog.org/?author=3>
Philly Inquirer<https://www.inquirer.com/politics/election/pennsylvania-mail-ballot-deadline-extension-executive-order-20200601.html> reports.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“As Trump attacks voting by mail, GOP builds 2020 strategy around limiting its expansion”<https://electionlawblog.org/?p=111820>
Posted on June 1, 2020 2:33 pm<https://electionlawblog.org/?p=111820> by Rick Hasen<https://electionlawblog.org/?author=3>
WaPo deep dive<https://www.washingtonpost.com/politics/as-trump-attacks-voting-by-mail-gop-builds-2020-strategy-around-limiting-its-expansion/2020/05/31/a17ccfa0-a00d-11ea-b5c9-570a91917d8d_story.html>:
President Trump’s persistent attacks on mail-in voting have fueled an unprecedented effort by conservatives to limit expansion of the practice before the November election, with tens of millions of dollars planned for lawsuits and advertising aimed at restricting who receives ballots and who remains on the voter rolls.
The strategy, embraced by Trump’s reelection campaign, the Republican National Committee and an array of independent conservative groups, reflects the recognition by both parties that voting rules could decide the outcome of the 2020 White House race amid the electoral challenges posed by the coronavirus<https://www.washingtonpost.com/health/2020/02/28/what-you-need-know-about-coronavirus/?itid=lk_inline_manual_3> pandemic.
Helping drive the effort is William Consovoy, a veteran Supreme Court litigator who also serves as one of Trump’s personal lawyers. Consovoy’s Virginia-based law firm is handling a battery of legal actions on behalf of the RNC, several state GOPs and an independent group called the Honest Elections Project<https://www.honestelections.org/>, which is connected to a Trump adviser.
The legal firepower and direct involvement of the national party reflect a major escalation in the conservative battle over voter fraud and voting rights, which until this year had primarily been waged by lesser-known groups with far fewer resources. The tactics of those organizations are now being embraced by new players with connections to influential figures in the president’s orbit….
According to people who know Consovoy, he is also a friend of conservative activist Leonard Leo, who has raised hundreds of millions of dollars for conservative causes in recent years and has advised <https://www.washingtonpost.com/politics/with-trump-muted-white-house-leans-on-kavanaugh-to-defend-himself/2018/09/17/9eab4e64-ba95-11e8-9812-a389be6690af_story.html?itid=lk_inline_manual_69> Trump on his appointment of conservative Supreme Court Justices Brett M. Kavanaugh and Neil M. Gorsuch.
Leo has spent an increasing amount of time studying voting cases, advising outside groups and encouraging conservative donors to support the efforts, said multiple people with knowledge of his activities. He declined a request for comment.
Leo is raising money for two conservative nonprofit networks called the 85 Fund and the Concord Fund, people familiar with his activities said. The Honest Elections Project is a project of the 85 Fund, the people said.
Snead called Leo a “supporter” of Honest Elections, declining to comment further.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>
“In Midst of COVID-19 Pandemic, Plaintiff Sues to Challenge Tennessee’s Vote-By-Mail Procedures”<https://electionlawblog.org/?p=111818>
Posted on June 1, 2020 2:29 pm<https://electionlawblog.org/?p=111818> by Rick Hasen<https://electionlawblog.org/?author=3>
Analysis<https://www.bradley.com/insights/publications/2020/05/in-midst-of-covid19-pandemic-plaintiff-sues-to-challenge-tennessees-votebymail-procedures> from the Bradley firm.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Yale Law School’s Floyd Abrams Institute for Freedom of Expression Conference<https://electionlawblog.org/?p=111816>
Posted on June 1, 2020 12:43 pm<https://electionlawblog.org/?p=111816> by Richard Pildes<https://electionlawblog.org/?author=7>
On Tuesday, Yale Law School is putting on this conference on the internet and the First Amendment. Nate Persily and I are participating in sessions on election issues and online platforms. For access to the Zoom conference, for which you must get registered, contact Heather.Branch at yale.edu.
COMMERCIAL SPEECH AND THE FIRST AMENDMENT
June 2, 2020
8:45 – 9:00 Welcome by Sandra Baron and Introduction by Floyd Abrams
9:00 – 10:30 The Supreme Court’s Framework for Commercial Speech: Shifting? Unmoored?
Panelists:
· Robert Post – Sterling Professor of Law, Yale Law School, New Haven, CT
· Beth Brinkmann – Partner, Covington, Washington, DC
· Genevieve Lakier – Assistant Professor of Law, Herbert and Marjorie Fried Teaching Scholar, University of Chicago Law School, Chicago, IL
Moderator:
· Amanda Shanor – Assistant Professor, Wharton School of the University of Pennsylvania, Philadelphia, PA
10:30 – 10:45 Break
10:45 – Noon Regulating Political Advertising Online: Is disclosure still the key?
In the wake of the 2016 election, states are getting more aggressive in regulating online political advertising, including by trying to shift some of the disclosure and record-keeping burdens onto the media platforms that host political ads, as opposed to just the advertisers themselves. The Fourth Circuit recently held that Maryland’s attempt to do so was unconstitutional. What are the boundaries of the state’s power to require disclosures under the First Amendment?
Panelists:
· Richard H. Pildes – Sudler Family Professor of Constitutional Law, NYU Law School, New York, NY
· Daniel I. Weiner – Deputy Director, Election Reform Program, Brennan Center for Justice, Washington, DC
· Allen Dickerson – Legal Director, Institute For Free Speech, Washington, DC
Moderator:
· Paul Safier – Of Counsel, Ballard Spahr LLP, Philadelphia, PA
12:00 – 12:30 Break
12:30 – 1:15 From Across the Atlantic: A heads-up on what EU Influence to anticipate on the U.S. Internet Law, Policy and Practice
· Remy Chavannes – Partner, Brinkhof, Amsterdam, NL
1:30 – 2:45 Where Algorithms Meet The First Amendment
Digital platforms such as Facebook, Twitter, and Google are increasingly crucial spaces for public discourse. But they are also the sites of great conflict over election interference, misinformation, discriminatory and false advertising, and the future of free speech values. The platforms shape the discourse they host through rules on “content moderation” and through black-box algorithms that invisibly decide what users will see and in what order.
Should free speech values inform the ways in which platforms moderate the speech they host? If so, which, and how should the platforms resolve conflicts between competing free speech values or between free speech values and other democratic ideals? Is regulation desirable, and if so, what kind? Would the First Amendment permit this kind of regulation?
Panelists:
· Jack Balkin – Knight Professor of Constitutional Law and the First Amendment, Yale Law School, New Haven, CT
· Daphne Keller – Director, Program on Platform Regulation, Cyber Policy Center, Stanford Law School, Palo Alto, CA
· Nathaniel Persily – James B. McClatchy Professor of Law, Stanford Law School, Palo Alto, CA
Moderator:
· Alex Abdo – Litigation Director, Knight First Amendment Institute at Columbia University, New York, NY
2:45 – 4:00 Milk from Nuts. Burgers from Soybeans. Can the states regulate what you call them?
As alternative food products have grown in popularity, states have passed laws limiting what such products can be named. These laws’ proponents view them as promoting truth in labeling, but opponents see a violation of First Amendment rights.
Panelists:
· Sarah Roller – Partner, Kelley Drye and Chair of Food and Drug Law practice, Washington, DC
· Justin Pearson – Florida Office Managing Attorney, Institute for Justice, Miami, FL
· Claudia Haupt – Associate Professor of Law and Political Science, Northeastern University School of Law, Boston, MA
Moderators:
· Brendan Healey – Partner, Baron Harris Healey, Chicago, IL
· Jonah Knobler – Partner, Patterson Belknap Webb & Tyler, New York, NY
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Democracy As A Slogan”<https://electionlawblog.org/?p=111813>
Posted on June 1, 2020 9:39 am<https://electionlawblog.org/?p=111813> by Rick Hasen<https://electionlawblog.org/?author=3>
Powerful Franita Tolson:<https://www.acslaw.org/expertforum/democracy-as-a-slogan/>
“This is a republic, not a democracy” is the last thing that one committed to voting rights wants to hear, particularly from those defending the shortcomings of what most of the world (used to) regard as the last great democracy. But this critique highlights a core failure of the American experiment that too few people have challenged as the country has become more democratic over the last 60 years: the fact that Americans love the ideas of democracy, to speak the words of democracy, but don’t want to do the real work required to live in a democracy. Political elites push marginalized people towards a system that only works for the powerful, and they point to America’s sometime embrace of democratic norms as evidence that the system is, in fact, democratic. The failure to recognize the difference between living in a democracy and living in a country with democratic norms means that rights can be infringed without recourse, political parties can maintain power without majority support, courts can be stacked with partisans…all while engaging the language of democracy. Americans can borrow democratic rhetoric without truly committing to democratic ideals.
Democracy, however, is not just rhetoric; it is a commitment. It is a way of life. As much as we would like for it to be the American way, history has shown that our commitment to democracy has, at times, been fleeting. The right to vote, for example, is considered the cornerstone of democratic legitimacy in our system. Yet our history is littered with examples of wrongful disenfranchisement against people of color, women, the disabled, the impoverished, and others from all walks of life, with state sanctioned violence and intimidation being used to deprive people of this most precious right. Today, we are still fighting these voting wars because the democratic norms that allowed for broader access to the ballot six decades ago have been easily eroded since they are not explicitly written in the text of the U.S. Constitution.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Time Is Running Out For Mail Balloting In June 2 Primary States”<https://electionlawblog.org/?p=111811>
Posted on June 1, 2020 9:36 am<https://electionlawblog.org/?p=111811> by Rick Hasen<https://electionlawblog.org/?author=3>
Steven Rosenfeld reports<https://www.nationalmemo.com/time-is-running-out-for-mail-balloting-in-june-2-primary-states>.
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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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