[EL] ELB News and Commentary 10/28/20

[Rick Hasen]

“‘Tsunamis of Misinformation’ Overwhelm Local Election Officials”<https://electionlawblog.org/?p=117745>
Posted on October 29, 2020 9:14 am<https://electionlawblog.org/?p=117745> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/10/29/technology/misinformation-local-election-officials.html>:

Election officials across the country are already stretched thin this year, dealing with a record number of mail-in ballots<https://www.nytimes.com/interactive/2020/us/elections/absentee-ballot-early-voting.html> and other effects of the coronavirus pandemic. On top of that, many are battling another scourge: misinformation.

Fueled by inaccurate comments from Mr. Trump and others, election lies<https://www.nytimes.com/2020/09/30/technology/how-voting-by-mail-tops-election-misinformation.html> have spread across social media. They include claims that Black Lives Matter protesters incited violence at polling places, that mail-in ballots were dumped, that ballot boxes and voting machines were compromised, and that ballots were “harvested<https://www.washingtonpost.com/politics/2020/05/26/what-is-ballot-harvesting-why-is-trump-so-against-it/>,” or collected and dropped off in bulk by unauthorized people.

Election officials in places such as Philadelphia, El Paso and Santa Rosa, Calif., are bearing the brunt of the fallout, according to interviews with a dozen of them in seven states. Some have had to contain misinformation-induced voter panic. Others are fighting back by posting accurate information on social media or giving newspaper and television interviews to spread their messages. Many are working longer shifts to debunk the distortions.

But their efforts have largely been fruitless, they said. When one rumor is smacked down, another pops up. And the reach of the rumors online is often so vast that the officials said they could not hope to compete.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“In This Strange Election Year, Foreign Embassies Find Little Access to Democrats”<https://electionlawblog.org/?p=117743>
Posted on October 29, 2020 9:11 am<https://electionlawblog.org/?p=117743> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/10/29/us/politics/presidential-election-biden-embassies.html>, with the subhed: “The Biden campaign, according to advisers, is concerned over possible perception of foreign meddling in the election — or any comparison to Russian interference on President Trump’s behalf in 2016.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“‘Perception Hacks’ and Other Potential Threats to the Election”<https://electionlawblog.org/?p=117740>
Posted on October 29, 2020 9:00 am<https://electionlawblog.org/?p=117740> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/10/28/us/politics/2020-election-hacking.html>

None of these attacks amounted to much. But from the sprawling war room at United States Cyber Command to those monitoring the election at Facebook, Twitter, Google and Microsoft, experts are watching closely for more “perception hacks.” Those are smaller attacks that can be easily exaggerated into something bigger and potentially seized upon as evidence that the whole voting process is “rigged,” as President Trump has claimed it will be.

The phrase comes up every time Christopher Krebs, the Department of Homeland Security official responsible for making sure voting systems are secure, talks about the biggest vulnerabilities in this election. His worry is not a vast attack but a series of smaller ones, perhaps concentrated in swing states, whose effect is more psychological than real.

Perception hacks are just one of a range of issues occupying election officials and cybersecurity experts in the final days of voting — and their concerns will not end on Election Day.

One theory gaining ground inside American intelligence agencies is that the Russians, having made the point that they remain inside key American systems despite bolstered defenses and new offensive operations by Cyber Command, may sit out the next week — until it is clear whether the vote is close.

The Russian play, under this theory, would be to fan the flames of state-by-state election battles, generating or amplifying claims of fraud that would further undermine American confidence in the integrity of the election process.

The Iranians would continue their playbook, which American intelligence officials see as more akin to vandalism than serious hacking, filled with threats in mangled English.

But American experts have warned local officials that come Nov. 3 the Iranians may seek to paralyze or deface the websites of secretaries of state, affecting the reporting of results, and create the impression of being inside the voting infrastructure even if they never were and the election results have not been compromised.

Here is a look at some of the potential threats and what has been learned so far in a year of behind-the-scenes cyberbattles.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


PA AG Explains Decision to Segregate Late Arriving Ballots<https://electionlawblog.org/?p=117735>
Posted on October 29, 2020 8:55 am<https://electionlawblog.org/?p=117735> by Rick Hasen<https://electionlawblog.org/?author=3>

Greg Sargent<https://www.washingtonpost.com/opinions/2020/10/29/trumps-effort-steal-election-explained-by-democrat-fighting-against-it/> interview:

Pennsylvania officials tried to preempt this by announcing<https://twitter.com/Tierney_Megan/status/1321516005563256833?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1321516005563256833%7Ctwgr%5Eshare_3&ref_url=https%3A%2F%2Ftalkingpointsmemo.com%2Flive-blog%2Fthe-final-sprint-campaign-ramps-up-in-closing-days> that they will segregate all late-arriving ballots. The idea is to prevent Republicans from challenging those ballots and then using that to challenge all mail ballots, by claiming they’ve all been commingled and can’t be separated from one another, requiring a halt to the count until the legal dispute over the late ballots is resolved.

“A careful decision was made to try to stave off the anticipated legal challenges by Donald Trump and his enablers,” Shapiro told me, though he declined to comment on how their strategy might unfold.

There are many reasons to doubt<https://www.washingtonpost.com/opinions/2020/10/27/raging-trump-wants-supreme-court-save-him-heres-why-it-probably-wont/?itid=lk_inline_manual_24> such a scheme could succeed. But the Supreme Court hasn’t given us grounds for assuming there’s nothing to worry about.

Here’s why.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“In Pennsylvania, Republicans Might Need to Only Stall to Win”<https://electionlawblog.org/?p=117733>
Posted on October 29, 2020 8:50 am<https://electionlawblog.org/?p=117733> by Rick Hasen<https://electionlawblog.org/?author=3>

New Yorker<https://www.newyorker.com/news/campaign-chronicles/in-pennsylvania-republicans-might-only-need-to-stall-to-win>:

The playbook that Republicans could put to use in Pennsylvania this year was partially developed in 2000, in the aftermath of the Presidential race between George W. Bush and Al Gore. That year, the election was close, and the contest came down to Florida, where the candidates were separated by only a few hundred votes. After the initial count, a swarm of attorneys and poll watchers descended on the state to catalogue small mishaps that might serve as grounds to challenge the results. Most notably, they found that some voters had failed to fully perforate their punch-card ballots, creating what came to be known as “hanging chads.” Legal disputes about whether to continue tallying ballots, and which to count, wound their way to the Supreme Court, which eventually halted further recounts, leaving Bush in the lead. Gore conceded on December 13, 2000. But, even if the Supreme Court hadn’t intervened, Gore still might have lost the state. In Tallahassee, the Republican legislature had already begun the process of choosing a set of Republican electors who were going to vote for Bush regardless. This year, Wisconsin, North Carolina, and Michigan all have conditions that would allow for such an eventuality. (G.O.P. lawmakers around the country have denied any such plans. Andrew Hitt, the G.O.P. chair in Wisconsin, recently said that he’d heard of “no such discussion.”) But Pennsylvania seems most vulnerable. “Harrisburg in 2020 could be Tallahassee in 2000,” Ari Mittleman, a political analyst with Keep Our Republic, told me.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Millions of mail ballots have not been returned as window closes for Postal Service delivery”<https://electionlawblog.org/?p=117729>
Posted on October 29, 2020 8:41 am<https://electionlawblog.org/?p=117729> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/2020/10/28/mail-ballots-postal-service/>:

Election officials said many of the outstanding mail ballots may belong to voters who requested them early in the process, then changed their minds and decided to vote in person — although it’s impossible to determine how many.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Hacker Releases Georgia County Election Data After Ransom Not Paid”<https://electionlawblog.org/?p=117727>
Posted on October 29, 2020 8:21 am<https://electionlawblog.org/?p=117727> by Rick Hasen<https://electionlawblog.org/?author=3>

WSJ:<https://www.wsj.com/articles/hacker-releases-georgia-county-election-data-after-ransom-not-paid-11603923101>

A computer hacker who took over networks maintained by Hall County, Ga., escalated demands this week by publicly releasing election-related files after a ransom wasn’t paid, heightening concerns about the security of voting from cyberattacks.

A website maintained by the hacker lists Hall County along with other hacked entities as those whose “time to pay is over,” according to a Wall Street Journal review of the hacker’s website.

The Hall County files are labeled as “example files,” which typically are nonsensitive and used to encourage payment before a possible bigger rollout of often more-compromising information.

The release of some of Hall County files came Tuesday, one week before the 2020 presidential election, in which election security has been a major focus. Recent polls show the race has tightened<https://www.wsj.com/articles/georgia-poll-trump-biden-virtually-tied-open-senate-race-tight-11602235802> in Georgia, which was last won by a Democrat in 1992, and former Vice President Joe Biden, the Democratic nominee, made a campaign appearance there Tuesday.

The Journal’s review of the hacked county files, which include administrative documents and election information, found named individuals with provisional ballots that were flagged for their signatures not matching; voter names and registration numbers; and an election-equipment inventory. Some information was public; some, such as a voter’s Social Security number, are private.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Facing Gap in Pennsylvania, Trump Camp Tries to Make Voting Harder”<https://electionlawblog.org/?p=117725>
Posted on October 29, 2020 8:17 am<https://electionlawblog.org/?p=117725> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/10/29/us/elections/trump-pennsylvania-voter-suppression.html>

President Trump’s campaign in the crucial battleground of Pennsylvania is pursuing a three-pronged strategy that would effectively suppress mail-in votes in the state, moving to stop the processing of absentee votes before Election Day, pushing to limit how late mail-in ballots can be accepted and intimidating Pennsylvanians trying to vote early.

Election officials and Democrats in Pennsylvania say that the Trump effort is now in full swing after a monthslong push by the president’s campaign and Republican allies to undermine faith in the electoral process in a state seen as one of the election’s most pivotal, where Mr. Trump trails<https://www.nytimes.com/2020/10/25/us/politics/pennsylvania-polls-biden-trump.html> Joseph R. Biden Jr. by about six percentage points, according to The Upshot’s polling average<https://www.nytimes.com/live/2020/presidential-polls-trump-biden>.

Mail-in votes in Pennsylvania and other swing states are expected to skew heavily toward Democrats. The state is one of a handful in which, by law, mail-in votes cannot be counted until Election Day, and the Trump campaign has leaned on Republican allies who control the Legislature to prevent state election officials from bending those rules to accommodate a pandemic-driven avalanche of absentee ballots, as many other states have already done.

At the same time, the campaign has pushed litigation to curtail how late mail-in votes can be accepted, as part of a flurry of lawsuits in local, state and federal courts challenging myriad voting rules and procedures. On Wednesday evening, the Supreme Court refused to hear a fast-tracked plea<https://www.supremecourt.gov/opinions/20pdf/20-542_i3dj.pdf> from Pennsylvania Republicans to block a three-day extension of the deadline for receiving absentee ballots. But Kathy Boockvar, a Democrat who is Pennsylvania’s secretary of state, advised counties to segregate ballots received after 8 p.m. on Election Day, as the issue remains before the court….

The intensity of the Trump campaign’s efforts in Philadelphia stems in part from the man running its Election Day operations nationwide: Michael Roman, a native Philadelphian who cut his teeth in city politics before running a domestic intelligence-gathering operation for the conservative Koch brothers. Like his boss, Mr. Roman has persistently made public statements undermining confidence in the electoral process.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Florida judge leading a vote-counting board donated to Trump 12 times, breaking judicial rules”<https://electionlawblog.org/?p=117723>
Posted on October 29, 2020 8:10 am<https://electionlawblog.org/?p=117723> by Rick Hasen<https://electionlawblog.org/?author=3>

USA Today:<https://www.usatoday.com/story/news/politics/elections/2020/10/29/judge-brent-shore-florida-duval-county-vote-counting-head-trump-donations/6068234002/?utm_source=feedblitz&utm_medium=FeedBlitzRss&utm_campaign=usatodaycomwashington-topstories>

A Florida judge<https://bit.ly/2HNz9GR> who heads Duval County’s vote-counting board has donated repeatedly to President Trump’s re-election campaign and other Republican efforts, and his home is covered in signs supporting Trump, despite rules requiring judges like him refrain from donations or public support.

Duval County senior Judge Brent Shore has served as chairman of the canvassing board because of his role as a county judge.

Yet Florida judicial rules bar judges from political donations of any kind<https://www.floridasupremecourt.org/Opinions/Judicial-Ethics-Advisory-Committee/Code-of-Judicial-Conduct/Canon-7>.

And canvassing board rules bar members from “displaying a candidate’s campaign signs.”

Senior county Judge Brent Shore, who has refused to change rules barring the public from photographing or videotaping vote-counting meetings<https://www.jacksonville.com/story/news/politics/elections/2020/10/27/duval-county-canvassing-board-proposes-election-rules-updates/3749959001/>, first donated $20 in 2016 to Donald Trump’s initial campaign for president. He has donated 11 more times since then to Trump for a total of $170, as well as donating $178 in the last two years to the Republican National Committee, the National Republican Congressional Committee and the National Republican Senatorial Committee….

Shore also may have violated the rules for canvassing board members. Canvassing boards, which right now have been counting mail ballots prior to Election Day, are three-person boards with a county commissioner, an elections supervisor and led by a county judge. They are banned from “actively participating” in campaigns or supporting candidacies.

The Division of Elections has said <https://opinions.dos.state.fl.us/searchable/pdf/2009/de0907.pdf> while campaign donations don’t count as active participation, “displaying a candidate’s campaign signs” would disqualify someone from serving on a canvassing board.

If Shore doesn’t resign, another Division of Elections opinion said<https://opinions.dos.state.fl.us/searchable/pdf/2015/de1503.pdf>, removing him from the board “might ultimately require judicial resolution” through a lawsuit.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Wisconsin Republican Party says hackers stole $2.3 million”<https://electionlawblog.org/?p=117721>
Posted on October 29, 2020 7:59 am<https://electionlawblog.org/?p=117721> by Rick Hasen<https://electionlawblog.org/?author=3>

AP reports.<https://apnews.com/article/election-2020-donald-trump-wisconsin-elections-641a8174e51077703888e2fa89070e12>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Supreme Court Allows Longer Deadlines for Absentee Ballots in Pennsylvania and North Carolina”<https://electionlawblog.org/?p=117719>
Posted on October 29, 2020 7:54 am<https://electionlawblog.org/?p=117719> by Rick Hasen<https://electionlawblog.org/?author=3>

Adam Liptak with a cogent recap of yesterday’s action.<https://www.nytimes.com/2020/10/28/us/supreme-court-pennsylvania-north-carolina-absentee-ballots.html>

You can find my analyses from yesterday of the PA<https://electionlawblog.org/?p=117673> and NC<https://electionlawblog.org/?p=117694> rulings.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>


“Trump confronts his 50 percent problem; The president’s inability to capture a majority of support sheds light on his extraordinary efforts to suppress the vote.”<https://electionlawblog.org/?p=117717>
Posted on October 29, 2020 7:46 am<https://electionlawblog.org/?p=117717> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/news/2020/10/29/trump-suppress-vote-win-433460?nname=playbook&nid=0000014f-1646-d88f-a1cf-5f46b7bd0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=630318>:

Donald Trump won the presidency with 46 percent of the popular vote. His approval rating, according to Gallup, has never hit 50 percent. He remains under 50 percent in national polling averages.

The president’s inability to capture a majority of support sheds light on his extraordinary attempts to limit the number of votes cast across the battleground state map — a massive campaign-within-a-campaign to maximize Trump’s chances of winning a contest in which he’s all but certain to earn less than 50 percent of the vote.

In Philadelphia, his campaign is videotaping voters<https://apnews.com/article/pennsylvania-lawsuits-elections-us-supreme-court-214f932f8f9cce644e580b25ee82f2ad> as they return ballots. In Nevada, it’s suing to force elections officials in Nevada’s Democratic-heavy Clark County to more rigorously examine<https://cdn.donaldjtrump.com/public-files/press_assets/er-petition-writ-mandamus.pdf> ballot signatures for discrepancies that could disqualify them. The Trump campaign has sued to prevent the expanded use of ballot drop boxes in Ohio, sought to shoot down an attempt to expand absentee ballot access in New Hampshire and tried to intervene<https://apnews.com/article/election-2020-arizona-lawsuits-elections-voting-2020-a1e158771989ea4ac49a7ff3b5651453> against a lawsuit brought by members of the Navajo Nation in Arizona which sought to allow ballots received from reservations after Election Day because of mail delays. And that’s just a few of its efforts.

Never before in modern presidential politics has a candidate been so reliant on wide-scale efforts to depress the vote as Trump.

“What we have seen this year which is completely unprecedented … is a concerted national Republican effort across the country in every one of the states that has had a legal battle to make it harder for citizens to vote,” said Trevor Potter, a former chair of the Federal Election Commission who served as general counsel to Republican John McCain’s two presidential campaigns. “There just has been this unrelenting Republican attack on making it easier to vote.”…

Courts have been resistant to Republicans’ claims<https://www.washingtonpost.com/politics/courts-voting-fraud-claims-republicans/2020/09/28/ceff1184-fda2-11ea-b555-4d71a9254f4b_story.html> about voter fraud in cases to restrict voting, if not outright rejecting them. But Republicans have found victories in rolling back Democratic-initiated changes on two principles: That federal courts should not change election laws close to the election — also known as the Purcell Principle<https://www.politico.com/news/2020/10/05/murky-legal-concept-could-swing-the-election-426604> — and, increasingly, that the judiciary should defer to state legislatures.

Most recently, the U.S. Supreme Court declined to reinstate a lower court’s order<https://www.politico.com/news/2020/10/26/supreme-court-wont-extend-wisconsin-ballot-deadline-432656> that extended the ballot return deadline in the battleground state of Wisconsin, meaning ballots would be due by Election Day.

Rick Hasen, an election law expert at University of California Irvine School of Law, said “trying to make voting harder during a pandemic is pretty tough to justify,” suggesting instead that “the Trump wing of the party thinks keeping the electorate smaller helps Trump.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“How Likely Is It that Courts Will Select the US President? The Probability of Narrow, Reversible Election Results in the Electoral College versus a National Popular Vote”<https://electionlawblog.org/?p=117715>
Posted on October 29, 2020 7:28 am<https://electionlawblog.org/?p=117715> by Rick Hasen<https://electionlawblog.org/?author=3>

New NBER working paper<https://www.nber.org/papers/w27993#fromrss> from Michael Geruso and Dean Spears:

Extremely narrow election outcomes—such as could be reversed by rejecting a few thousand ballots—are likely to trigger dispute over the results. Narrow vote tallies may generate recounts and litigation; they may be resolved by courts or elections administrators (e.g., Secretaries of State disqualifying ballots) rather than by voters; and they may reduce the peacefulness, perceived legitimacy, or predictability of the transfer of political power. In this paper we evaluate the probability of such disputable US presidential elections under a hypothetical National Popular Vote versus the current Electoral College system. Starting from probabilistic simulations of likely presidential election outcomes that are similar to the output from election forecasting models, we calculate the likelihood of disputable, narrow outcomes under the Electoral College. The probability that the Electoral College is decided by 20,000 ballots or fewer in a single, pivotal state is greater than 1-in-10. Although it is possible in principle for either system to generate more risk of a disputable election outcome, in practice the Electoral College today is about 40 times as likely as a National Popular Vote to generate scenarios in which a small number of ballots in a pivotal voting unit determines the Presidency. This disputed-election risk is asymmetric across political parties. It is about twice as likely that a Democrat’s (rather than Republican’s) Electoral College victory in a close election could be overturned by a judicial decision affecting less than 1,000, 5,000, or 10,000 ballots in a single, pivotal state.
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Posted in electoral college<https://electionlawblog.org/?cat=44>


“At behest of Trump campaign official, Minneapolis police union calls for retired officers to act as ‘eyes and ears’ on Election Day”<https://electionlawblog.org/?p=117713>
Posted on October 29, 2020 7:20 am<https://electionlawblog.org/?p=117713> by Rick Hasen<https://electionlawblog.org/?author=3>

Star Tribune<https://www.startribune.com/trump-official-asks-minneapolis-police-union-to-recruit-retired-cops-as-poll-challengers-on-election-day/572904421/>:

The Minneapolis police union put out a call this week for retired officers to help serve as “eyes and ears” at polling sites in “problem” areas across the city on Election Day, at the request of an attorney for President Donald Trump’s re-election campaign.

The request was made by William Willingham, whose e-mail signature identifies him as a senior legal adviser and director of Election Day operations for the Trump campaign.

In an e-mail Wednesday morning to Minneapolis Police Federation President Lt. Bob Kroll, Willingham asked the union president about recruiting 20 to 30 former officers to serve as “poll challengers” to work either a four- or eight-hour shift in a “problem area.”

“Poll Challengers do not ‘stop’ people, per se, but act as our eyes and ears in the field and call our hotline to document fraud,” the e-mail read. “We don’t necessarily want our Poll Challengers to look intimidating, they cannot carry a weapon in the polls due to state law. … We just want people who won’t be afraid in rough neighborhoods or intimidating situations.”
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>


William & Mary Law School’s State of Election Blog: Masks in Mississippi<https://electionlawblog.org/?p=117711>
Posted on October 29, 2020 7:18 am<https://electionlawblog.org/?p=117711> by Rick Hasen<https://electionlawblog.org/?author=3>

Via email:

Over at the State of Elections blog, on which William & Mary Law students cover state election law topics, Catrina Curtis ’22 writes about Mississippi mask requirements at polling places. It opens<applewebdata://12397E3F-6094-476C-884D-B274F2D82777/William%20&%20Mary%20Law>, “Mississippi finds itself in an odd position going into this important Election Day amidst the COVID-19 pandemic: it is the only state to have allowed its statewide mask mandate to expire and the only state that is not offering early or mail-in voting for all of its citizens.” The full post (and many others) available here<http://www.stateofelections.com/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Uber-backed Prop. 22 campaign allowed to keep nonprofit mail status”<https://electionlawblog.org/?p=117709>
Posted on October 29, 2020 7:15 am<https://electionlawblog.org/?p=117709> by Rick Hasen<https://electionlawblog.org/?author=3>

SF Chronicle:<https://www.sfchronicle.com/business/article/Uber-backed-Prop-22-campaign-allowed-to-keep-15682474.php> “The U.S. Postal Service said Wednesday that the Yes on 22 campaign can continue to use nonprofit postal rates, which are cheaper.” My earlier coverage (including my dispute with the Chronicle about updating my quote) is here<https://electionlawblog.org/?p=117244>. The new piece notes my updated quote.
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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
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http://electionlawblog.org<http://electionlawblog.org/>

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