[EL] ELB News and Commentary 3/10/20

Mon Mar 9 21:09:58 PDT 2020

“Coronavirus threatens to pose an unprecedented challenge to the 2020 elections”<https://electionlawblog.org/?p=109925>
Posted on March 9, 2020 9:04 pm<https://electionlawblog.org/?p=109925> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/coronavirus-threatens-to-pose-an-unprecedented-challenge-to-the-2020-elections/2020/03/09/fc961ea0-6219-11ea-acca-80c22bbee96f_story.html>:

When asked what kept him up at night, Ben Wikler, who is responsible for delivering a must-win state in November as chairman of the Wisconsin Democratic Party, used to answer, “unknown unknowns.” He no longer has to wonder what such a risk might look like.

Presidential campaigns, parties and state election officials are scrambling to heed health warnings while safeguarding the democratic process against a growing coronavirus<https://www.washingtonpost.com/health/2020/02/28/what-you-need-know-about-coronavirus/?tid=lk_inline_manual_2&itid=lk_inline_manual_2> epidemic whose scope is difficult to predict.

Their planning has included advising voters not to lick their mail-in ballots, relocating polling places away from senior living communities, and weighing whether to move forward with plans to bring tens of thousands of visitors from around the world to Milwaukee and Charlotte for the planned Democratic and Republican summer conventions, respectively.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Tornadoes, Coronavirus and the 2020 Election”<https://electionlawblog.org/?p=109923>
Posted on March 9, 2020 8:59 pm<https://electionlawblog.org/?p=109923> by Rick Hasen<https://electionlawblog.org/?author=3>

Jerry Goldfeder<https://www.law.com/newyorklawjournal/2020/03/09/tornadoes-coronavirus-and-the-2020-election/> for the NYLJ:

The devastating tornado in Tennessee on the eve of the presidential primary last week killed two dozen people and destroyed untold number of homes, sending election regulators scrambling as to how to conduct the state’s voting. It’s the kind of issue I think about because I am an election lawyer, representing candidates up and down the ballot. Naturally enough, then, I focus on the unpredictability of weather or terrorist attacks on voting rights and election outcomes.

The tornado’s impact on the primary underscored my worry about how the coronavirus might affect the November election. What happens if the illness ravages the elderly population of southern Florida immediately before election day next November, preventing thousands of Democratic voters from casting a ballot? Or if it strikes at the heart of rural Pennsylvania, quarantining huge numbers of Republican residents from voting? Will the Republican governor in Florida or the Democratic governor in Pennsylvania allow the vote to proceed in the rest of the state, thus ensuring victory for their respective candidates? Or should the election in the affected states be postponed, allowing them to cast ballots after the rest of the country has voted? Although presidential elections are state-run affairs—with each jurisdiction having its own laws relating to registration, voter ID, mail-in ballots or early voting—a national health emergency requires a national plan. Without any federal guidance or directive, decisions by governors in swing states might be based upon political considerations, thus rendering the result subject to challenge and the legitimacy of the ultimate winner called into question.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“The Support-or-Advocacy Clauses”<https://electionlawblog.org/?p=109921>
Posted on March 9, 2020 8:54 pm<https://electionlawblog.org/?p=109921> by Rick Hasen<https://electionlawblog.org/?author=3>

Richard Primus and Cameron Kistler have posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3547579> on SSRN (forthcoming Fordham Law Review). Here is the abstract:

Two little-known clauses of a Reconstruction-era civil rights statute are a potentially powerful weapon for litigators seeking to protect the integrity of federal elections. For the clauses to achieve their potential, however, the courts will need to settle correctly a contested question of statutory interpretation.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

I Talked “Election Meltdown” on KQED Forum, Starting with How Coronavirus May Affect 2020 Campaigns, Conventions, and Voting<https://electionlawblog.org/?p=109918>
Posted on March 9, 2020 1:00 pm<https://electionlawblog.org/?p=109918> by Rick Hasen<https://electionlawblog.org/?author=3>

You can listen here<https://www.kqed.org/forum/2010101876288/law-professor-richard-hasen-on-the-threats-that-cause-an-election-meltdown>.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

“Democrats hate the GOP so much they’re hurting themselves in congressional races”<https://electionlawblog.org/?p=109916>
Posted on March 9, 2020 12:51 pm<https://electionlawblog.org/?p=109916> by Rick Hasen<https://electionlawblog.org/?author=3>

Ray LaRaja <https://www.washingtonpost.com/outlook/2020/03/09/small-donors-democrats-flip-senate/> WaPo oped:

Democrats are eager to depose not just President Trump, but his congressional enablers and defenders, too. And they’re opening their wallets to prove it. In Kentucky, Amy McGrath, the retired fighter pilot who hopes to challenge Senate Majority Leader Mitch McConnell, has raised $16.9 million<https://www.kentucky.com/news/politics-government/article238944743.html>. Last quarter, Democrats sent $3.5 million<https://www.thestate.com/news/politics-government/article238902993.html> to South Carolina to Jaime Harrison, who is challenging Sen. Lindsey O. Graham.

But McGrath, Harrison and several others like them face a problem: They’re probably going to lose. Meanwhile, the candidates challenging less famous, workaday Republicans are struggling to find donors — and many of them are in states or districts that could actually flip. This dynamic is a classic case of pragmatism versus passion in an era when party leaders are losing control of contributions and rank-and-file donors are increasingly inclined to go their own way. But liberal pockets are not bottomless. In a zero-sum competition for cash, the search for brand-name scalps the Democrats may never claim could keep Democrats from winning the seats, and the Senate majority, that is truly within reach.

To put the situation in context, Democrats need to pick up three seats to take control of the Senate (currently 53-47), assuming that none of their incumbents lose. But since Democrats will likely lose Sen. Doug Jones’s seat in Alabama, they must win four seats if a Democrat wins the presidency (with the vice president serving as a tiebreaker) and five if voters reelect Trump.

Forecasters<http://centerforpolitics.org/crystalball/2020-senate/> say the most vulnerable Republicans incumbents are Sens. Cory Gardner in Colorado, Susan Collins in Maine, Thom Tillis in North Carolina, Martha McSally in Arizona and Joni Ernst Iowa. According to the Center for Responsive Politics<https://www.opensecrets.org/races/summary?cycle=2020&id=NCS1>, three of the likely Democratic candidates have raised less than half of their opponents’ haul in the last reporting period. Some of those Democrats have also spent considerable funds trying to win primaries or gain some early name recognition. For example, the Democratic nominee in North Carolina, Cal Cunningham, spent more than $3 million during the primary period and is left only with $1.5 million in cash-on-hand compared to the incumbent, Tillis, who has $5.4 million in his bank account.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“How the Trump Campaign Took Over the GOP”<https://electionlawblog.org/?p=109914>
Posted on March 9, 2020 12:35 pm<https://electionlawblog.org/?p=109914> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/03/09/us/trump-campaign-brad-parscale.html>:

President Trump’s campaign manager and a circle of allies have seized control of the Republican Party’s voter data and fund-raising apparatus, using a network of private businesses whose operations and ownership are cloaked in secrecy, largely exempt from federal disclosure.

Working under the aegis of Jared Kushner, the president’s son-in-law, with the cooperation of Trump appointees at the Republican National Committee, the operatives have consolidated power — and made money — in a way not possible in an earlier, more transparent analog era. Since 2017, businesses associated with the group have billed roughly $75 million to the Trump campaign, the Republican National Committee and a range of other Republican clients.

The takeover of the Republican Party’s under-the-hood political machinery parallels the president’s domination of a party that once shunned him, reflected in his speedy impeachment trial and summary acquittal. Elected Republicans have learned the political peril of insufficient fealty. Now, by commanding the party’s repository of voter data and creating a powerful pipeline for small donations, the Trump campaign and key party officials have made it increasingly difficult for Republicans to mount modern, digital campaigns without the president’s support.
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Posted in political parties<https://electionlawblog.org/?cat=25>

“Political Advertising, Digital Platforms, and the Democratic Deficiencies of Self-Regulation”<https://electionlawblog.org/?p=109912>
Posted on March 9, 2020 12:01 pm<https://electionlawblog.org/?p=109912> by Rick Hasen<https://electionlawblog.org/?author=3>

Rob Yablon has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3549366> on SSRN (forthcoming, Minn. L. Rev. Headnotes). Here is the abstract:

Amid ongoing concerns about foreign electoral interference and fake news, digital platforms like Facebook, Google, and Twitter have been rolling out new political advertising policies for the 2020 election cycle. These emergent policies address what sort of ads are permissible, who can run them, how particular audiences can be targeted, and what disclosures and disclaimers must be made. Collectively, the policies highlight the extent to which platforms have become active regulators and powerful gatekeepers of modern political discourse. They also raise a host of questions about the relationship between digital governance and the law of democracy.

This Essay aims to draw attention to the rise of platform self-regulation of political advertising and to encourage inquiry into its implications. In future work, scholars can and should debate the merits of particular measures, scrutinize platforms’ implementation and enforcement efforts, and consider the systemic consequences of these self-regulatory activities. As a first step, the Essay zooms out and identifies an overarching process-based concern. Platforms often invoke democratic values to justify their political advertising policies. Yet their ostensible efforts to promote and safeguard democracy lack any real democratic imprimatur. Platforms have not adopted their policies through open, participatory processes, and in at least some instances, their choices appear to prioritize the interests of political professionals over the preferences and autonomy of platform users. The Essay concludes with some tentative suggestions for addressing these democratic deficiencies.
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Posted in campaigns<https://electionlawblog.org/?cat=59>

--
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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