[EL] more news and commentary 10/23/20

[Rick Hasen]

Pennsylvania Supreme Court, Relying Solely on Plain Meaning of Elections Code, Rejects Use of Signature Matching as Basis to Reject Mail In Ballots; Any Appeal to U.S. Supreme Court Unlikely to Succeed<https://electionlawblog.org/?p=117334>
Posted on October 23, 2020 11:26 am<https://electionlawblog.org/?p=117334> by Rick Hasen<https://electionlawblog.org/?author=3>

The court was unanimous <http://www.pacourts.us/assets/opinions/Supreme/out/J-113-2020mo%20-%20104584871117842321.pdf?cb=1> in its result (with all but one justice joining in the reasoning). Note that because this ruling relies upon the court’s interpretation of the plain meaning of the elections code, it would be very hard to take this case to the Supreme Court under the “independent state legislature” doctrine that was at play in the last PA case (when the PA court relied on the state Constitution against the legislative statute).

Republicans cannot argue to the U.S. Supreme Court that the state Supreme Court incorrectly interpreted the state statute (that’s not within the authority of the US Supreme Court to say). Any argument to the US Supreme Court in a case like this would have to argue that the Equal Protection or Due Process Clause requires signature matching, assumedly on grounds that without such matching there would be fraud. I think that would be a very tough argument to make in the U.S. Supreme Court.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Leonard Leo’s Influence over the Federal Judiciary Makes His Pushing the Voter Fraud Myth Exceptionally Dangerous<https://electionlawblog.org/?p=117332>
Posted on October 23, 2020 11:10 am<https://electionlawblog.org/?p=117332> by Rick Hasen<https://electionlawblog.org/?author=3>

Thread starts here<https://twitter.com/rickhasen/status/1319685887685394432> and includes new reporting<https://www.citizensforethics.org/reports-investigations/crew-investigations/80-million-dark-money-group-tied-to-trump-supreme-court-advisor-leonard-leo/> on Leo’s financial activities via CREW.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>, Supreme Court<https://electionlawblog.org/?cat=29>


Important Amicus Brief on Scope of Twenty-Sixth Amendment in Texas Voting Case<https://electionlawblog.org/?p=117330>
Posted on October 23, 2020 11:00 am<https://electionlawblog.org/?p=117330> by Rick Hasen<https://electionlawblog.org/?author=3>

I’ve followed closely the work of Yael Bromberg on the scope of the 26th Amendment, which, like the 19th Amendment<https://www.law.georgetown.edu/georgetown-law-journal/wp-content/uploads/sites/26/2020/07/Thin-and-Thick-Conceptions-of-the-Nineteenth-Amendment-Right-to-Vote-and-Congress%E2%80%99s-Power-to-Enforce-It.pdf>, has been vastly underutilized as a tool to promote voting rights.

This amicus brief<https://andrewgoodman.org/wp-content/uploads/2020/10/19-1389acTheAndrewGoodmanFoundation.pdf> from the Andrew Goodman Foundation, Equal Citizens, and Common Cause lays out the argument for the Supreme Court to take up this issue in a more serious way than we’ve seen in the federal appeals courts.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“What global elections have taught Silicon Valley about misinformation”<https://electionlawblog.org/?p=117328>
Posted on October 23, 2020 10:56 am<https://electionlawblog.org/?p=117328> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/news/2020/10/23/what-global-elections-have-taught-silicon-valley-about-misinformation-431592?nname=playbook-pm&nid=0000015a-dd3e-d536-a37b-dd7fd8af0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=964328>:

The swift action Twitter and Facebook took to stifle an unverified New York Post article and the crushing political pressure<https://www.politico.com/news/2020/10/15/gop-facebook-twitter-counterattack-429743> that forced them to reverse course illustrate a key reality: With just weeks until the U.S. election, tech giants have yet to sort out their misinformation problems.

That hasn’t just been a challenge in the U.S., moreover. Silicon Valley’s social media stalwarts have faced misinformation woes in elections all around the globe since 2016, prompting them to revamp their policies on content moderation or invent new ones, entirely, in response to emerging threats and political demands.

“It’s always an election year on Twitter — we are a global service and our decisions reflect that,” Twitter’s vice president of public policy for the Americas, Jessica Herrera-Flanigan, told POLITICO this summer. “We take the learnings from every recent election around the world and use them to improve our election integrity work.”

The New York Post incident elicited partisan howling last week, which led the companies to rethink how they handle content tied to hacked materials. Ultimately, they changed policies that had been put in place to avoid a repeat of 2016, when emails that were stolen and leaked as part of a Russian interference campaign rocked the race.

Other rules are also in flux. Earlier this month, Facebook announced a moratorium on all political advertising<https://www.politico.com/news/2020/10/07/facebook-political-ads-election-ban-427452> in the period after Election Day, despite CEO Mark Zuckerberg’s previous pledge not to make any further election-related policy changes. Google imposed a narrower, post-election ban<https://www.politico.com/news/2020/09/25/google-political-ads-election-day-421827> on its advertising platforms, as well.

And this week, Twitter revamped its process<https://www.politico.com/news/2020/10/09/twitter-retweets-election-misinformation-428329> for how users across the globe retweet a post, prompting them to add their own commentary or insight as a way to mitigate the mindless spread of election-related misinformation with a single click.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>


“N. Carolina GOP asks Supreme Court to roll back extra time for accepting mail-in ballots”<https://electionlawblog.org/?p=117326>
Posted on October 23, 2020 10:54 am<https://electionlawblog.org/?p=117326> by Rick Hasen<https://electionlawblog.org/?author=3>

Pete Williams<https://www.nbcnews.com/politics/2020-election/north-carolina-gop-asks-supreme-court-roll-back-extra-time-n1244368> for NBC News:

Republicans in the presidential battleground state of North Carolina asked the Supreme Court on Thursday to block lower court rulings that allowed six extra days to accept ballots sent by mail.

The Trump campaign, the state and national Republican parties and Republican leaders of the state Legislature said decisions by North Carolina’s Board of Elections, upheld by federal courts, “pose an immediate threat to the integrity of the federal elections process.”

The board changed the mail ballot deadline from Nov. 6, which the Legislature set in June, to Nov. 12. A federal district judge refused to block the change, and so did the 4th U.S. Circuit Court of Appeals.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>


“The Supreme Court is giving advocates for voting rights heartburn”<https://electionlawblog.org/?p=117324>
Posted on October 23, 2020 10:48 am<https://electionlawblog.org/?p=117324> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/politics/2020/10/23/supreme-court-is-giving-voting-rights-advocates-heartburn/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Iranian Video of Purported Hack into State Voter Registration Database Appears to Be Staged<https://electionlawblog.org/?p=117322>
Posted on October 23, 2020 10:43 am<https://electionlawblog.org/?p=117322> by Rick Hasen<https://electionlawblog.org/?author=3>

Analysis<https://www.eipartnership.net/rapid-response/foreign-election-interference-announcement> from EIP:

This week has seen a flurry of activity related to potential voter suppression, starting with the sending of threatening emails, purportedly from the Proud Boys, to voters in several states; the release of a video purporting to show the hacking of voter registration databases; and finally the attribution of this activity<https://www.washingtonpost.com/technology/2020/10/20/proud-boys-emails-florida/> to the Islamic Republic of Iran by the United States Government.

In addition to their announcement of Iranian involvement, the FBI also announced that both Russian and Iranian actors had separately obtained US voter information. The reporting of this activity has raised many questions, and we will use this post to outline what we know and what we suspect about these incidents.

The key takeaways:
·         The technical evidence supports the assertion that the “Proud Boys” were not responsible for sending the initial threatening emails.
·         The video purporting to show a live attack against a voter database was very likely staged.
·         The voter data contained in that video appears to be legitimate, but could have been obtained in a variety of ways.
·         The implication from the video — that there is widespread voter fraud powered by stolen voting data — is false.
·         Our team noticed a mistake in redaction in the video and reported this to the authorities. This mistake has led to the discovery of a large number of potential other systems used by this actor.
·         We cannot provide independent attribution to the Islamic Republic of Iran.
·         This incident raises important issues about the practices of states around voter rolls, particularly Alaska.
·         This campaign is intended to decrease voter confidence in U.S. electoral processes. There is no evidence of the wide-scale compromise or fraud that these actors claim to show….
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Talks collapse on a deal to let Pa. counties open mail ballots before Election Day”<https://electionlawblog.org/?p=117320>
Posted on October 23, 2020 10:38 am<https://electionlawblog.org/?p=117320> by Rick Hasen<https://electionlawblog.org/?author=3>

Spotlight PA:<https://whyy.org/articles/talks-collapse-on-a-deal-to-let-pa-counties-open-mail-ballots-before-election-day/>

Negotiations between the Republican-led legislature and Gov. Tom Wolf to let counties begin opening mail ballots in Pennsylvania before Election Day appeared to collapse Wednesday, setting up a<https://www.inquirer.com/politics/election/2020-presidential-election-pa-voting-problems-20200628.html> potential<https://www.inquirer.com/politics/election/2020-presidential-election-pa-voting-problems-20200628.html> nightmare scenario<https://www.inquirer.com/politics/election/2020-presidential-election-pa-voting-problems-20200628.html> that some fear could leave the state counting millions of ballots for days after Nov. 3.

The Democratic governor and legislative leaders had been negotiating behind closed doors as recently as Tuesday to change the election code after months of inaction. But the General Assembly adjourned Wednesday and is not scheduled to reconvene until Nov. 10, a week after the election.

In adjourning, Republicans turned away pleas from county elections officials across the state, who said allowing them to open ballots before Election Day would reduce staffing strain and administrative headaches on top of whatever issues they’re dealing with during in-person voting.

Without a deal, the days-long process of counting mail ballots can’t begin until 7 a.m. on Election Day, potentially leaving the results unclear for days and opening room for candidates to falsely declare victory<https://www.inquirer.com/politics/election/2020-presidential-election-pa-voting-problems-20200628.html>. Still, Pennsylvania’s top election official said Monday she’s confident the “overwhelming majority” of ballots<https://www.spotlightpa.org/news/2020/10/pa-kathy-boockvar-election-results-timely-tom-wolf-republicans-precanvassing/> would be counted by the Friday after Nov. 3.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Why Conservatives Should Back State Voting Rights Acts”<https://electionlawblog.org/?p=117318>
Posted on October 23, 2020 10:31 am<https://electionlawblog.org/?p=117318> by Rick Hasen<https://electionlawblog.org/?author=3>

Chris Elmendorf<https://www.city-journal.org/why-conservatives-should-back-state-voting-rights-acts> at City Journal:

Now comes a new threat, or so it may seem: the state VRA. Much as states in the 1970s copied and extended federal environmental laws<https://ballotpedia.org/State_environmental_policy_acts>, left-leaning states such as California<https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB182>, Washington<https://app.leg.wa.gov/RCW/default.aspx?cite=29A.92>, and Oregon<https://olis.leg.state.or.us/liz/2019R1/Measures/Overview/HB3310> are enacting their own versions of the Voting Rights Act, filling gaps and patching the weaknesses of the federal law. A particularly audacious bill is pending in New York<https://assembly.state.ny.us/leg/?default_fld=&bn=S07528&term=2019&Summary=Y&Actions=Y&Text=Y&Committee%26nbspVotes=Y&Floor%26nbspVotes=Y>.

Yet conservatives should see state VRAs not as a threat but as an opportunity. The state VRA is—or rather, can be—a statutory lever to accomplish a variety of worthy goals, including dismantling off-cycle elections<https://www.city-journal.org/off-cycle-local-election-timing-decreases-voter-turnout>, which grossly amplify the political power of public-sector unions and antidevelopment homeowners; negating the most objectionable feature of the federal VRA, namely, its privileging of single-member-district elections; and even providing conservative and moderate voters with meaningful opportunities to elect candidates of their choice to city councils now dominated by the left and further left. Further, conservative state legislators, even in deep-blue coastal states, have a real opportunity to shape state VRAs because the agenda behind them exposes fissures within the Democratic coalition.

The conservative case for state VRAs is not merely opportunistic, moreover. Backing these laws is also a way for conservatives to build bridges to minority communities and to channel political competition toward the persuasion of voters (as opposed to gerrymandering of districts or selective mobilization or demobilization of narrow factions within the electorate). American democracy will be more stable in the long run if the electorate picks its politicians rather than the other way round.
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>


Federal District Court Dismisses Trump Campaign Attack on New Jersey Mail In Voting, Finding Alleged Injuries Too Speculative<https://electionlawblog.org/?p=117314>
Posted on October 23, 2020 5:44 am<https://electionlawblog.org/?p=117314> by Rick Hasen<https://electionlawblog.org/?author=3>

Read it here.<https://electionlawblog.org/wp-content/uploads/trump-v-way.pdf>

Among the arguments rejected by the court were those based upon recent fraud allegations in Paterson.
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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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