[EL] ELB News and Commentary 11/25/20

[Rick Hasen]

Trump Expected to Show Up with Giuliani at Unofficial “Hearing” in Gettysburg PA Wednesday to Push False Voter Fraud Accusations<https://electionlawblog.org/?p=119058>
Posted on November 24, 2020 9:12 pm<https://electionlawblog.org/?p=119058> by Rick Hasen<https://electionlawblog.org/?author=3>

Jeremy Diamond<https://twitter.com/JDiamond1/status/1331455831859191810>:

Jennifer Jacobs<https://twitter.com/JenniferJJacobs/status/1331464390202290177?s=20>:
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“McConnell still mum on Biden’s win as Trump administration begins transition”<https://electionlawblog.org/?p=119056>
Posted on November 24, 2020 9:06 pm<https://electionlawblog.org/?p=119056> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo report<https://www.washingtonpost.com/politics/trump-republicans-mcconnell-biden/2020/11/24/b742de9a-2e67-11eb-860d-f7999599cbc2_story.html>s.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Must Read from Tim Alberta: “The Inside Story of Michigan’s Fake Voter Fraud Scandal”<https://electionlawblog.org/?p=119054>
Posted on November 24, 2020 9:01 pm<https://electionlawblog.org/?p=119054> by Rick Hasen<https://electionlawblog.org/?author=3>

This Politico piece <https://www.politico.com/news/magazine/2020/11/24/michigan-election-trump-voter-fraud-democracy-440475> is so good to understand how the depravity of the voter fraud myth spread in Michigan and is undermining the integrity of Republican officials in the state. It begins:

After five years spent bullying the Republican Party into submission, President Donald Trump finally met his match in Aaron Van Langevelde.

Who?

That’s right. In the end, it wasn’t a senator or a judge or a general who stood up to the leader of the free world. There was no dramatic, made-for-Hollywood collision of cosmic egos. Rather, the death knell of Trump’s presidency was sounded by a baby-faced lawyer, looking over his glasses on a grainy Zoom feed on a gloomy Monday afternoon, reading from a statement that reflected a courage and moral clarity that has gone AWOL from his party, pleading with the tens of thousands of people watching online to understand that some lines can never be uncrossed.

“We must not attempt to exercise power we simply don’t have,” declared Van Langevelde, a member of Michigan’s board of state canvassers, the ministerial body with sole authority to make official Joe Biden’s victory over Trump. “As John Adams once said, ‘We are a government of laws, not men.’ This board needs to adhere to that principle here today. This board must do its part to uphold the rule of law and comply with our legal duty to certify this election.”

Van Langevelde is a Republican. He works for Republicans in the Statehouse. He gives legal guidance to advance Republican causes and win Republican campaigns. As a Republican, his mandate for Monday’s hearing—handed down from the state party chair, the national party chair and the president himself—was straightforward. They wanted Michigan’s board of canvassers to delay certification of Biden’s victory. Never mind that Trump lost by more than 154,000 votes, or that results were already certified in all 83 counties. The plan was to drag things out, to further muddy the election waters and delegitimize the process, to force the courts to take unprecedented actions that would forever taint Michigan’s process of certifying elections. Not because it was going to help Trump win but because it was going to help Trump cope with a loss. The president was not accepting defeat. That meant no Republican with career ambitions could accept it, either.

Which made Van Langevelde’s vote for certification all the more remarkable. With the other Republican on the four-person board, Norman Shinkle, abstaining on the final vote—a cowardly abdication of duty—the 40-year-old Van Langevelde delivered the verdict on his own. At a low point in his party’s existence, with much of the GOP’s leadership class pre-writing their own political epitaphs by empowering Trump to lay waste to the country’s foundational democratic norms, an obscure lawyer from west Michigan stood on principle. It proved to be the nail in Trump’s coffin: Shortly after Michigan’s vote to certify, the General Services Administration finally commenced the official transition of power and Trump tweeted out a statement<https://twitter.com/realDonaldTrump/status/1331013908971261953?s=20> affirming the move “in the best interest of our Country.”

Still, the drama in Lansing raised deeper questions about the health of our political system and the sturdiness of American democracy. Why were Republicans who privately admitted Trump’s legitimate defeat publicly alleging massive fraud? Why did it fall to a little-known figure like Van Langevelde to buffer the country from an unprecedented layer of turmoil? Why did the battleground state that dealt Trump his most decisive defeat—by a wide margin—become the epicenter of America’s electoral crisis?

I also found this bit very interesting:

There is no immediate way to make Americans appreciate this distinction, no instant cure for the flagging confidence in our elections. But there are obvious incremental steps to take in the name of transparency and efficiency. First among them, acknowledged Chatfield, the Michigan House speaker, is getting rid of the rules that led to the TCF Center circus in the first place.

“There’s a lot we can learn in the state of Michigan, because the way we’ve handled this, it’s become a national embarrassment,” Chatfield told me in a brief interview after the final certification vote. “And one of the items where we should look at other states and see how they’ve done it well, is regarding the early processing of absentee ballots. We mishandled that this year. We should have allowed for early processing. We didn’t, and it became a spectacle. I think we can learn from that. It should be something the Legislature fixes moving forward.”

This is relatively easy for Chatfield to admit—he’s term limited and leaving office soon. For those Republicans left to pick up the pieces in the coming legislative session, there may be little incentive for bipartisan cooperation on a subject that now divides the two party bases as starkly as gun rights or tax rates. The backlash against absentee voting from Republican constituents was already fierce; in the wake of Trump’s defeat and the TCF Center conspiracies, Republicans might find it beneficial to avoid raising the issue at all.

There is little cause for optimism. If the majority of GOP politicians couldn’t be bothered to do the easy work of debunking crackpot conspiracy theories, how likely are they to do the hard work of hardening our democracy?

“A lot of our leaders in this country ought to be ashamed of themselves,” said Thomas, the nonpartisan elections guru who kept Michigan’s governing class guessing his political affiliation for the past several decades. “They have propagated this narrative of massive fraud, and it’s simply not true. They’ve leapt from some human error to massive fraud. It’s like a leap to Never Neverland. And people are believing them.”

He exhaled with a disgusted groan.

“The people of this country really need to wake up and start thinking for themselves and looking for facts—not conspiracy theories being peddled by people who are supposed to be responsible leaders, but facts,” Thomas said. “If they’re not going to be responsible leaders, people need to seek out the truth for themselves. If people don’t do that—if they no longer trust how we elect the president of the United States—we’re going to be in real trouble.”
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“This unnerving election does not bode well for the next one”<https://electionlawblog.org/?p=119052>
Posted on November 24, 2020 5:46 pm<https://electionlawblog.org/?p=119052> by Rick Hasen<https://electionlawblog.org/?author=3>

Ned Foley WaPo column:<https://www.washingtonpost.com/opinions/2020/11/24/this-unnerving-election-does-not-bode-well-next-one/>

In 2020, the plan backfired. The judicial shellacking of Trump’s fact-free claims gave backbone to these other political actors to withstand Trump’s all-out assault on letting the voters decide whom they wanted in the White House for the next four years.AD

And yet, it is important to recognize how vulnerable the electoral system remains to this kind of authoritarian pressure. Different individuals inhabiting the same political offices, or perhaps even the same individuals faced with just slightly less clear-cut circumstances, could have produced the opposite outcome this year — and could do so four years from now.

This year is a reminder of just how dependent democracy is on the little-known individuals who actually administer the process for counting the votes. In Georgia, Republican Secretary of State Brad Raffensperger emerged as the unexpected hero of upholding free and fair elections, asserting that “as an engineer,” he knows that “numbers don’t lie.”

Suppose, however, that Raffensperger had buckled under Trump’s attack and said that he did not trust his own state’s results? Even if the truth had been just the same, the public narrative over Georgia’s outcome might have played out far differently.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


Yesterday the PA Supreme Court Decided a Case That Will Move a State Senate Candidate from a 4-Vote Lead to a 94-Vote Deficit, and The Swing Judicial Vote Agrees with the Candidate’s Position in Future Cases. He’s Asked for Rehearing<https://electionlawblog.org/?p=119050>
Posted on November 24, 2020 5:42 pm<https://electionlawblog.org/?p=119050> by Rick Hasen<https://electionlawblog.org/?author=3>

This<https://triblive.com/local/valley-news-dispatch/ziccarelli-asks-pa-supreme-court-to-reconsider-decision-to-count-undated-allegheny-county-ballots/> is a crazy situation (via How Appealing<https://howappealing.abovethelaw.com/2020/11/24/#137576>):

The Republican challenger in the 45th Senatorial District that includes parts of Allegheny and Westmoreland counties has asked the state Supreme Court to reconsider its Monday order allowing undated mail-in ballots to be counted.

Nicole Ziccarelli, of Lower Burrell, filed an emergency application for reargument Tuesday morning. She is running in the race against Democratic incumbent Sen. Jim Brewster.

As of late Tuesday morning, Ziccarelli was leading by four votes, according to online results in the district that includes the Alle-Kiski and Mon valleys. That number, however, still does not include the undated ballots in Allegheny County, which break for Brewster by 94 votes.

On Monday, the state Supreme Court issued a split decision on the issue, with the majority finding that the 2,349 undated mail-in ballots that Ziccarelli challenged ought to be counted.

The court wrote that the missing dates are a technical violation of the Election Code but do not warrant disenfranchising thousands of voters. On the back of the envelope for mail-in ballots, voters are told to write the date, plus their signature, printed name and address.

The majority opinion, written by Justice Christine Donohue, was joined by Justices Max Baer and Debra Todd, with Justice David Wecht concurring in the results. Wecht wrote a concurring and dissenting opinion, as did Justice Kevin Dougherty, in which Chief Justice Tom Saylor and Justice Sally Updyke Mundy joined.

That split is what prompted Ziccarelli’s request for reargument.

Her attorney noted that Wecht, Dougherty, Saylor and Mundy all agreed that the undated ballots were not compliant with the Election Code and therefore are invalid.

“Nevertheless, the court then allowed those ballots to be canvassed and counted, even though a majority of the justices agreed that they were statutorily invalid.”

In his concurring and dissenting opinion, Wecht wrote that in future elections, he would treat the date and signing requirement in the Election Code as mandatory. That means, he wrote, that the omission of either is sufficient to invalidate a ballot.

“However, under the circumstances in which the issue has arisen, I would apply my interpretation only prospectively,” Wecht wrote.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


NY Times: Trump Has Attacked the Integrity of the Election on Twitter More Than 400 Times Since Election Day<https://electionlawblog.org/?p=119047>
Posted on November 24, 2020 3:44 pm<https://electionlawblog.org/?p=119047> by Rick Hasen<https://electionlawblog.org/?author=3>

And counting.<https://www.nytimes.com/interactive/2020/11/24/us/politics/trump-twitter-tweets-election-results.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Must-Read from NYT’s Alex Burns: “Trump Stress-Tested the Election System, and the Cracks Showed”<https://electionlawblog.org/?p=119045>
Posted on November 24, 2020 2:13 pm<https://electionlawblog.org/?p=119045> by Rick Hasen<https://electionlawblog.org/?author=3>

I was going to write a piece like this until I read Alex’<https://www.nytimes.com/2020/11/24/us/politics/election-trump-democracy.html?action=click&module=Top%20Stories&pgtype=Homepage>s:

As President Trump’s efforts to overturn the 2020 election have steadily disintegrated, the country appears to have escaped a doomsday scenario in the campaign’s epilogue: Since Nov. 3, there have been no tanks in the streets or widespread civil unrest, no brazen intervention by the judiciary or a partisan state legislature. Joseph R. Biden Jr.’s obvious victory has withstood Mr. Trump’s peddling of conspiracy theories and his campaign of groundless lawsuits.

In the end — and the postelection standoff instigated by Mr. Trump and his party is truly nearing its end — the president’s attack on the election wheezed to an anticlimax. It was marked not by dangerous new political convulsions but by a letter from an obscure Trump-appointed bureaucrat, Emily W. Murphy of the General Services Administration, authorizing the process of formally handing over the government to Mr. Biden.

For now, the country appears to have avoided a ruinous breakdown of its electoral system.

Next time, Americans might not be so lucky.

While Mr. Trump’s mission to subvert the election has so far failed at every turn, it has nevertheless exposed deep cracks in the edifice of American democracy and opened the way for future disruption and perhaps disaster. With the most amateurish of efforts, Mr. Trump managed to freeze the passage of power for most of a month, commanding submissive indulgence from Republicans and stirring fear and frustration among Democrats as he explored a range of wild options for thwarting Mr. Biden.

He never came close to achieving his goal: Key state officials resisted his entreaties to disenfranchise huge numbers of voters, and judges all but laughed his legal team out of court.

Ben Ginsberg, the most prominent Republican election lawyer of his generation, said he doubted any future candidates would attempt to replicate Mr. Trump’s precise approach, because it has been so unsuccessful. Few candidates and election lawyers, Mr. Ginsberg suggested, would regard Rudolph W. Giuliani and Sidney Powell — the public faces of Mr. Trump’s litigation — as the authors of an ingenious new playbook.

“If in a few months, we look back and see that this Trump strategy was just an utter failure, then it’s not likely to be copied,” said Mr. Ginsberg, who represented former President George W. Bush in the 2000 election standoff. “But the system was stress-tested as never before.”

That test, he said, revealed enough vague provisions and holes in American election law to make a crisis all too plausible. He pointed in particular to the lack of uniform standards for the timely certification of elections by state authorities, and the uncertainty about whether state legislatures had the power to appoint their own electors in defiance of the popular vote. The 2020 election, he said, “should be a call for some consideration of those issues.”

Yet even without precipitating a full-blown constitutional crisis, Mr. Trump has already shattered the longstanding norm that a defeated candidate should concede quickly and gracefully and avoid contesting the results for no good reason. He and his allies also rejected the longstanding convention that the news media should declare a winner, and instead exploited the fragmentation of the media and the rise of platforms like Twitter and Facebook to encourage an alternative-reality experience for his supporters.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Pennsylvania certifies its presidential election results, officially declaring Joe Biden the winner”<https://electionlawblog.org/?p=119043>
Posted on November 24, 2020 2:11 pm<https://electionlawblog.org/?p=119043> by Rick Hasen<https://electionlawblog.org/?author=3>

Philadelphia Inquirer:<https://fusion.inquirer.com/politics/election/pennsylvania-certification-2020-presidential-election-vote-20201124.html>

Pennsylvania’s top elections official certified the state’s presidential election results on Tuesday, officially declaring Joe Biden the winner and paving the way for him to receive the state’s 20 Electoral College votes next month.

Pennsylvania Secretary of State Kathy Boockvar made the final count official, three weeks after the Nov. 3 election: Biden received 3,458,229 votes, 80,555 more than President Donald Trump’s 3,377,674 votes.

Gov. Tom Wolf then signed the Certificate of Ascertainment to name the 20 Biden electors who will meet in Harrisburg on Dec. 14. “Today’s certification is a testament to the incredible efforts of our local and state election officials, who worked tirelessly to ensure Pennsylvania had a free, fair and accurate process that reflects the will of the voters,” Wolf said in a statement.

Still, Trump’s campaign continues to press its case in court, dismissing certification as “just a procedural step” in a statement Monday<https://twitter.com/JennaEllisEsq/status/1331000032296841218> and arguing that a favorable court ruling could disrupt the state’s slate of electors anytime before the Dec. 8 cutoff date in federal law.

The Biden campaign celebrated the state certification and predicted the long-shot Trump legal challenges would go nowhere.

“Trump did everything he could to disenfranchise voters and stop the results from being certified in Pennsylvania, including filing over 15 unsuccessful lawsuits — most recently producing one of the more embarrassing courtroom performances of all time, with the judge in the case ruling that their arguments were ‘without merit’ and ‘unsupported by evidence,’” senior Biden campaign adviser Bob Bauer said in a statement. “Trump did not succeed in Pennsylvania and he will not succeed anywhere else. Trump’s lawsuits will continue to fail, as they have in over 30 cases since election day, states will continue to certify their results, and Joe Biden will be sworn in as President on January 20, 2021.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Right-Wing Social Media Finalizes Its Divorce From Reality”<https://electionlawblog.org/?p=119040>
Posted on November 24, 2020 12:03 pm<https://electionlawblog.org/?p=119040> by Rick Hasen<https://electionlawblog.org/?author=3>

Renee DiResta<https://www.theatlantic.com/ideas/archive/2020/11/right-wing-social-media-finalizes-its-divorce-reality/617177/> for The Atlantic:

Yet reducing the supply of misinformation doesn’t eliminate the demand. Powerful online influencers and the right-wing demi-media—intensely partisan outlets, such as One America News and Newsmax, that amplify ideas that bubble up from internet message boards—have steadfastly reassured Trump’s supporters that he will be reelected, and that the conspiracies against him will be exposed. No doubt seeing an opportunity to pull viewers from a more established rival, One America News Network ran a segment attacking Fox’s Arizona call and declaring the network a “Democrat Party hack.” The president himself, while tweeting about how the election was being stolen, amplified accounts that touted OANN<https://twitter.com/realdonaldtrump/status/1328338630679597056> and Newsmax<https://www.cnn.com/2020/11/12/media/fox-news-newsmax-reliable-sources/index.html> as places to find accurate reporting on the truth about his election victory. And on Parler, the conspiracy-mongering has grown only more frenzied as Trump makes state-by-state fraud allegations: In addition to concerns about Sharpies, the social network abounds with rumors of CIA supercomputers with secret programs to change votes, allegations of massive numbers of dead people voting, claims of backdated ballots, and assorted other speculations that users attempt to coalesce into a grand unified theory of election theft.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>, Election Meltdown<https://electionlawblog.org/?cat=127>


The PA Supreme Court’s Interesting Recent Decision<https://electionlawblog.org/?p=119030>
Posted on November 24, 2020 7:48 am<https://electionlawblog.org/?p=119030> by Richard Pildes<https://electionlawblog.org/?author=7>

I realize this is of interest only to election-law folks at this point, but I wanted to highlight some noteworthy aspects of the PA Supreme Court’s recent 3-1-3 election-law decision.

The issues are whether absentee ballots are valid votes if the voter failed to comply with requirements to (1) put the date down on which they cast the ballot; (2) handwrite their name; and/or (3) put down their address.  There are no allegations of fraud or any other irregularities in these cases.  The case involved 8,329 ballots in Philadelphia County and 2,349 ballots in Allegheny County, and the lower courts in these counties came out differently on the issues.

All these issues turn on how a state court should interpret the state election code.

First, the supreme court voted 7-0 to treat as valid ballots in categories (2) and (3).  The reasons for this unanimity were that the election code itself does not impose these requirements.  These requirements were imposed by the Secretary of State, exercising delegated authority, and while this information was required to improve the administrative and processing of absentee ballots, inclusion of this information was held not to serve any “weighty” state interests in ensuring the integrity of the absentee-ballot process.

 Second, in contrast, the court held 4-3 that ballots in category (1) – those on which the voter had failed to include the date the ballot was filled out – were invalid votes.  The reasons these four justices reached that conclusion is that the election code itself did include this requirement and, in addition, stated that voters “shall” date and sign the absentee ballot envelope.  The combination of these two factors led the majority of four to hold that it was inappropriate for election officials and courts to not treat these requirements as binding.  The dissenting three justices took a more functional approach to the statutory language; they argued that the state’s purposes in ensuring these were valid votes was fully served by the fact that the ballots were all received on time, since election officials time-stamp the date of receipt.

 Third, one justice (Judge Wecht) who agreed a ballot was invalid if the voter failed to provide the date it was cast nonetheless voted not to invalidate those ballots for this election.  His opinion provides a detailed analysis of the PA Supreme Court’s jurisprudence on election issues over time, coupled with his criticism that the court has been too free-wheeling in departing from the text of the election code.  But he notes all the complicated changes PA made to its absentee voting system, starting with the major bipartisan 2019 legislation that created no-excuse absentee voting, implemented for the first time this year during a general election, and concludes that voters had not been given clear enough instructions and warnings that failing to include the date would make their ballot invalid.  As he put it, “it would be unfair to punish voters for the incidents of systemic growing pains.”   So he voted to make his ruling only prospective, meaning it would apply to future elections.

 Finally, Judge Wecht, in urging the state legislature to address many of the issues that arose in this election, noted that the federal Voting Rights Act includes a provision that makes it illegal to deny the right to vote for “immaterial reasons.”  He then suggested that it would be inconsistent with this provision to insert more requirements for absentee ballots than considerations of fraud, election security, and voter qualifications require.

I wanted to flag this decision for many reasons, one of which is that it’s gratifying to see these shifting alignments, which suggest a court grappling in good-faith with methodological and interpretive issues over how courts should read state election codes.  PA is one of eight states that elects its judges in partisan elections.  The Court has aa 5-2 Democratic majority.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


A Note of Thanks, And a Blog Slowdown, as I Complete My “Cheap Speech” Book Manuscript and Contemplate the Future of the Election Law Blog and Election Reform Work<https://electionlawblog.org/?p=119034>
Posted on November 24, 2020 7:34 am<https://electionlawblog.org/?p=119034> by Rick Hasen<https://electionlawblog.org/?author=3>

This election season has been a challenge to American democracy, one that was even more severe than I anticipated in 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>. That book came out in February, the day of the Iowa caucus debacle, and things declined from there. In February, I convened a group of leading thinkers in law, politics, tech, and media to discuss the threats to the integrity of the election, in a conference called, Can American Democracy Survive the 2020 Elections? <https://www.law.uci.edu/events/election-law/election-2020/> The question was not meant rhetorically.

Some the participants in that conference participated in a private meeting after to begin to hammer out recommendations to assure a fair and safe 2020 election. That conference turned out to be the last big conference I attended before COVID shut down in-person gatherings. The group continued to deliberate about recommendations online, even as some of its members contracted the virus. The recommendations had to be reworked given COVID.

In late April, we released our report, Fair Elections During a Crisis<https://www.law.uci.edu/faculty/full-time/hasen/2020ElectionReport.pdf>, and the report had some key recommendations which got a fair bit of attention and traction, including the key idea needed to be prepared that because of COVID, the election could be too early to call for a number of days, and in the meantime there could be unsubstantiated claims of voter fraud and disinformation, and an attempt to undermine American democracy. That meant that social media companies had an important role to play in combatting disinformation. It also called for election administrators and Congress to assure that Americans had safe mail-in and in-person voting options in November.

Over the last few months, Donald Trump’s attack on the integrity of the election system, and the willingness of many in the Republican party to go along with completely unsubstantiated claims of voter fraud and vote rigging, have put the system under tremendous strain. That’s why it was so important that we had as fair and clean an election as possible. I am in awe and grateful to the state and local election administrators of both parties who engaged in Herculean effort to make our election fair. I am profoundly disappointed that some Republican legislators and others acted to make it harder to vote<https://www.liebertpub.com/doi/full/10.1089/elj.2020.0646> even during a pandemic, and that some courts, including the Supreme Court, have engaged in new jurisprudence which made voting harder than it needed to be during the pandemic, and, as I wrote yesterday in the Times<https://www.nytimes.com/2020/11/23/opinion/trump-election-courts.html?referringSource=articleShare>, will present new voting rights challenges in the future.

As someone who has been out in public explaining the complex rules surrounding our elections and the litigation that inevitably accompanies disputes in American life, I want to express my appreciation to the community of election law scholars and political scientists who worked tirelessly to assure that the public got fair and accurate information, and who debated and discussed issues in good faith despite some ideological disagreements. It is really easy to make errors in the midst of election disputes, and I made fewer mistakes because of this rich and generous community.

And I want to express my great appreciation for courts that have held up the rule of law, again despite the usual ideological agreements. When our norms have been challenged, our laws have held—barely, but held.

I’m now going to step back from the blog to complete work on my book manuscript, Cheap Speech<https://www.law.uci.edu/news/press-releases/2020/hasen-craig-newmark-grant.html>, that is considering questions of how do deal with the flood of misinformation and disinformation about elections that will pervade the process going forward. I’m way behind now because of what has transpired over the last few months.

I’ll still blog the most important developments, but I plan to write much less in this space for the rest of the year. I also plan to take some time to think about the future of ELB. I’ve been running this blog since 2003: it is a labor of love but a tremendous amount of work. I need to consider the most sustainable model going forward.

I also would like to find time to consider long term election reform. As I wrote<https://www.nytimes.com/2020/06/29/opinion/sunday/voting-rights.html> in the New York Times in August:

Beyond triage for 2020, longer term change requires bolder thinking. We need a new social movement, that may take a generation or more, pushing a constitutional amendment protecting the right to vote. It would guarantee all adult citizens the right to vote in federal elections, establish a nonpartisan administrative body to run federal elections that would automatically register all eligible voters to vote, and impose basic standards of voting access and competency for state and local elections.

Talking of a constitutional amendment in the current polarized atmosphere may sound like a pipe dream when Congress cannot pass even basic voting rights protections, like restoring the part of the Voting Rights Act that the Supreme Court destroyed. But the current situation is untenable.

We need a 28th Amendment for voter equality around which people can organize and agitate. Organization could emulate the battle<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3501114> for passage of the 19th Amendment, which bars gender discrimination in voting. It took more than a generation for that amendment to pass, and along the way activists for equal women’s suffrage got state legislatures to bolster voting rights and the public to change its attitudes about voting.

It has been 100 years since passage of the 19th Amendment and 150 since the passage of the 15th Amendment barring racial discrimination in voting. Despite those accomplishments, every national election features endless angst and litigation over assuring people the right to vote, which puts special burdens on those who already face the greatest barriers. We need to bring that struggle to an end and press forward toward a new voting rights amendment that would assure that our representatives truly reflect the will of the people.

Thank you for reading, and Happy Thanksgiving!
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Roiled by Election, Facebook Struggles to Balance Civility and Growth”<https://electionlawblog.org/?p=119032>
Posted on November 24, 2020 7:06 am<https://electionlawblog.org/?p=119032> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/11/24/technology/facebook-election-misinformation.html?smid=tw-share>

In the tense days after the presidential election, a team of Facebook employees presented the chief executive, Mark Zuckerberg, with an alarming finding: Election-related misinformation was going viral on the site.

President Trump was already casting the election as rigged, and stories from right-wing media outlets with false and misleading claims<https://www.nytimes.com/live/2020/2020-election-misinformation-distortions> about discarded ballots, miscounted votes and skewed tallies were among the most popular news stories on the platform.

In response, the employees proposed an emergency change to the site’s news feed algorithm, which helps determine what more than two billion people see every day. It involved emphasizing the importance of what Facebook calls “news ecosystem quality” scores, or N.E.Q., a secret internal ranking it assigns to news publishers based on signals about the quality of their journalism.

Typically, N.E.Q. scores play a minor role in determining what appears on users’ feeds. But several days after the election, Mr. Zuckerberg agreed to increase the weight that Facebook’s algorithm gave to N.E.Q. scores to make sure authoritative news appeared more prominently, said three people with knowledge of the decision, who were not authorized to discuss internal deliberations.

The change was part of the “break glass” plans<https://www.nytimes.com/2020/08/21/technology/facebook-trump-election.html> Facebook had spent months developing for the aftermath of a contested election. It resulted in a spike in visibility for big, mainstream publishers like CNN, The New York Times and NPR, while posts from highly engaged hyperpartisan pages, such as Breitbart and Occupy Democrats, became less visible, the employees said.

It was a vision of what a calmer, less divisive Facebook might look like. Some employees argued the change should become permanent, even if it was unclear how that might affect the amount of time people spent on Facebook. In an employee meeting the week after the election, workers asked whether the “nicer news feed” could stay, said two people who attended.

Guy Rosen, a Facebook executive who oversees the integrity division that is in charge of cleaning up the platform, said on a call with reporters last week that the changes were always meant to be temporary. “There has never been a plan to make these permanent,” he said. John Hegeman, who oversees the news feed, said in an interview that while Facebook might roll back these experiments, it would study and learn from them.

The news feed debate illustrates a central tension that some inside Facebook are feeling acutely these days: that the company’s aspirations of improving the world are often at odds with its desire for dominance.

In the past several months, as Facebook has come under more scrutiny for its role in amplifying false and divisive information, its employees have clashed over the company’s future. On one side are idealists, including many rank-and-file workers and some executives, who want to do more to limit misinformation and polarizing content. On the other side are pragmatists who fear those measures could hurt Facebook’s growth, or provoke a political backlash that leads to painful regulation.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>


“How Trump’s fundraising could benefit his post-White House political life”<https://electionlawblog.org/?p=119029>
Posted on November 24, 2020 7:00 am<https://electionlawblog.org/?p=119029> by Rick Hasen<https://electionlawblog.org/?author=3>

Fredreka Schouten<https://www.cnn.com/2020/11/23/politics/trump-fundraising-money-save-america/index.html> for CNN:

But the legal fine print on each shows that a new Trump fundraising arm, Save America, actually will get the first cut of any money that comes in. And because spending rules for leadership PACs are so loose, campaign-finance experts warn that Save America could easily become a political slush fund for Trump and those close to him.

Here’s a closer look at the President’s recent fundraising efforts and his new fundraising vehicle Save America…

The typical donor doesn’t read the legal fine print,” Paul Ryan, vice president of vice president of policy and litigation at Common Cause, told CNN.Ryan said few restrictions apply on the PAC’s spending. Should they choose to do so, Trump and his family members could draw salaries from Save America funds or direct its donors’ money to his businesses by hosting PAC events at a Trump-owned properties.

“This money could easily — and legally — end up in his own pocket in the coming years,” Ryan said. And even after the long-shot legal challenges to the 2020 election end, Trump “could tease a 2024 run for years and continue milking his supporters for contributions to this slush fund,” he added.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“Republicans probably won’t subvert the presidential election — this year”<https://electionlawblog.org/?p=119027>
Posted on November 24, 2020 6:54 am<https://electionlawblog.org/?p=119027> by Rick Hasen<https://electionlawblog.org/?author=3>

David Daley Boston Globe oped<https://www.bostonglobe.com/2020/11/23/opinion/republicans-probably-wont-subvert-presidential-election-this-year/>.
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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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