[EL] ELB News and Commentary 9/3/20

Rick Hasen rhasen at law.uci.edu
Wed Sep 2 21:25:10 PDT 2020


AG Barr Tells Wolf Blitzer That Expanded Mail In Voting is “Reckless and Dangerous” (It’s Not) and Says Federal Law Enforcement Could Be Sent to Polling Places to Combat Criminal Threats (They Cannot)<https://electionlawblog.org/?p=114725>
Posted on September 2, 2020 4:45 pm<https://electionlawblog.org/?p=114725> by Rick Hasen<https://electionlawblog.org/?author=3>

Here’s<https://www.washingtonpost.com/elections/2020/09/02/trump-biden-live-updates/> the WaPo writeup of the CNN appearance:

Attorney General William P. Barr asserted Wednesday that mass mail-in voting was ripe for potential fraud and that it would be “reckless and dangerous” to convert to such a system in such a heated partisan climate.

Though Barr seemed to concede that there had not been widespread fraud associated with mail-in voting in the past, he told CNN’s Wolf Blitzer in a testy exchange that was because the United States had not used the practice in a broad way.

“This is playing with fire,” Barr said. “We’re a very closely divided country here, and if people have to have confidence in the results of the election and the legitimacy of the government, and people trying to change the rules to this methodology, which, as a matter of logic, is very open to fraud and correction, is reckless and dangerous, and people are playing with fire.”

Barr pointed to a report more than a decade ago from a commission led by former president Jimmy Carter and former secretary of state James A. Baker III, which noted the fraud risk with mail-in voting. He said news accounts and studies since that time had confirmed the risk, and added, “The only time the narrative changed is after this administration came in.”

In a statement earlier this year, the Carter Center noted that while the commission had found some risks associated with mail-in voting, it also found “little evidence of voter fraud” in places with appropriate safeguards, such as Oregon, which has voted by mail since 1998.

Blitzer noted that multiple states now vote entirely by mail, and there has been little evidence of widespread fraud. He suggested the coronavirus pandemic might call for special measures this year. Barr said polling places could make arrangements to protect people, and those at risk could request absentee ballots — rather than having states send ballots to all voters on their rolls, which means homes often get ballots for previous residents.

And on sending law enforcement to polling places (see 18 USC 592<https://www.law.cornell.edu/uscode/text/18/592>), here’s the clip and Steve Vladeck commentary<https://twitter.com/steve_vladeck/status/1301301421879496705?s=20>:
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


President Trump Arguably Broke North Carolina Law in Suggesting That Voters Try to Vote by Mail *and* In Person<https://electionlawblog.org/?p=114721>
Posted on September 2, 2020 4:24 pm<https://electionlawblog.org/?p=114721> by Rick Hasen<https://electionlawblog.org/?author=3>

President Trump made some worrisome comments today that seemed to encourage double voting in the state of North Carolina.

You can watch the short interview here<https://www.wect.com/2020/09/02/wects-jon-evans-interview-with-president-trump-he-arrives-ilm/>. Here’s the transcript (my emphasis):

(Q) 600,000 people could vote by absentee in this state. Are you confident in that system?

“They will vote and then they are going to have to check their vote by going to the poll and voting that way because if it tabulates then they won’t be able to do that. So let them send it in, and let them go vote. And if the system is as good as they say it is, then they obviously won’t be able to vote (at the poll). If it isn’t tabulated, they will be able to vote. So that’s the way it is, and that’s what they should do.

“I don’t like the idea of these unsolicited votes. I never did. It leads to a lot of problems. They’ve got 11 problems already on very small contests. I’m not happy about it. At the same time, we’re in court with a lot of it. We’re going to see if it can be stopped.

“But send you ballots, send them in strong whether it’s solicited or unsolicited. The absentees are fine. But go to vote and if they haven’t counted it, you can vote. That’s the way I view it.”

Under North Carolina law<https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/BySection/Chapter_163/GS_163-275.pdf>, it is illegal: “For any person with intent to commit a fraud to register or vote at more than one precinct or more than one time, or to induce another to do so, in the same primary or election, or to vote illegally at any primary or election.”

Was Trump by his comments “induc[ing]” “with intent to commit fraud” a person to “vote” “more than one time” “in the same …. election”? I think a case could be made that he did. He was encouraging people to vote both by mail and in person. The questionable part is about his intent. It sounds like he was suggesting an attempt at double voting as a means of testing the integrity of the system, or assuring that his voters can cast at least one ballot for him. Is that a fraudulent intent? I could see how a jury could find it to be so especially given Trump’s other statements suggesting he believes that such double voting would not be caught by election officials.

Another possible defense is that Trump was “joking” or not being serious about his comments, and this was typical Trumpian hyperbole. Perhaps so, but I think many people may hear his comments and think he is serious. At the very least, this is now going to create a headache for election administrators in North Carolina (and potentially elsewhere) to admonish voters not to try to do this and muck up the system.

Federal law <https://uscode.house.gov/view.xhtml?req=(title:52%20section:10307%20edition:prelim)> also makes it a crime for a person to vote more than once in a federal election.

I don’t expect Trump to be prosecuted for this statement but it is a terrible thing to encourage voter fraud—especially by someone who consistently makes claims that it is rampant in the U.S. (it’s not).

Update: Here’s vide<https://twitter.com/briantylercohen/status/1301300170575937537?s=20>o of AG Barr pretending he doesn’t know that double voting is illegal.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


Georgia: “U.S. District Court Rejects DeKalb County Officials’ Efforts to Stop Federal Voting Rights Lawsuit, Won’t Order Dismissal”<https://electionlawblog.org/?p=114719>
Posted on September 2, 2020 4:10 pm<https://electionlawblog.org/?p=114719> by Rick Hasen<https://electionlawblog.org/?author=3>

Release<https://lawyerscommittee.org/u-s-district-court-rejects-dekalb-county-officials-efforts-to-stop-federal-voting-rights-lawsuit-wont-order-dismissal/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Let the Private Sector Help Save the Election. We Have No Choice | Opinion”<https://electionlawblog.org/?p=114717>
Posted on September 2, 2020 4:07 pm<https://electionlawblog.org/?p=114717> by Rick Hasen<https://electionlawblog.org/?author=3>

Wendy Weiser and Jennifer Weiss-Wolf<https://www.newsweek.com/let-private-sector-help-save-election-we-have-no-choice-opinion-1529251> for CNN.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“How Greater Vote-by-Mail Influences California Voter Turnout”<https://electionlawblog.org/?p=114715>
Posted on September 2, 2020 4:04 pm<https://electionlawblog.org/?p=114715> by Rick Hasen<https://electionlawblog.org/?author=3>

PPIC Sept. 10 event<https://www.ppic.org/event/how-greater-vote-by-mail-influences-california-voter-turnout/?utm_source=ppic&utm_medium=email&utm_campaign=event>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“If needed, Florida better-equipped for presidential vote recount”<https://electionlawblog.org/?p=114713>
Posted on September 2, 2020 4:00 pm<https://electionlawblog.org/?p=114713> by Rick Hasen<https://electionlawblog.org/?author=3>

Steven Rosenfeld reports.<https://www.bignewsnetwork.com/news/266276081/if-needed-florida-better-equipped-for-presidential-vote-recount>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Exclusive: Bipartisan campaign aims to reassure U.S. voters as Trump questions election integrity”<https://electionlawblog.org/?p=114711>
Posted on September 2, 2020 3:56 pm<https://electionlawblog.org/?p=114711> by Rick Hasen<https://electionlawblog.org/?author=3>

Reuters<https://www.reuters.com/article/us-usa-election-contested-exclusive/exclusive-bipartisan-campaign-aims-to-reassure-us-voters-as-trump-questions-election-integrity-idUSKBN25T1HV>:

At least a dozen groups are planning a large-scale, bipartisan public relations campaign to counter any attempt by President Donald Trump to cast doubt on the integrity of the November election or dispute the result should he lose, people involved in the effort told Reuters.

One organization, the National Task Force on Election Crises, is contacting leading politicians from both major parties, military figures, star athletes, faith leaders and business executives, asking them to reassure voters about the integrity of the election result if chaos ensues after the Nov. 3 contest.

While members of the task force insist the effort will be aimed at supporters of both Trump and Democratic candidate Joe Biden, Trump’s questioning of mail-in ballots and the fairness of the election as well as his disparaging of the U.S. Postal Service have been “front and center” in recent internal discussions, one member said.

Separately, a loose coalition of mostly bipartisan civic groups is in early talks about how to encourage voters to be patient while all ballots are counted and to ensure a secure transition of power if Trump loses to Biden.

The groups, which revealed their plans for the first time, said their preparations are driven in part by concerns over how Trump and his supporters will react to a potential defeat. The Republican president, who is trailing in polls, has alleged without evidence that the election is “rigged” and has made unfounded claims that voting by mail is riddled with fraud.

“We have the unprecedented situation of a man who took the oath of office to support the Constitution but is directly challenging the result of the election prior to the outcome,” said Tom Ridge, a former Homeland Security Department secretary under Republican President George W. Bush and now co-chairman of VoteSafe, a group involved in the effort.

“A lot of people are nervous,” Ridge added. “It’s disgusting, it’s contemptible.”

Thea McDonald, a Trump campaign spokeswoman, accused the groups of “peddling conspiracy theories” to help Biden, adding: “President Trump and his campaign are fighting for a free, fair, transparent election in which every valid ballot counts – once.”

The election crises task force, a bipartisan organization made up of 50 former cabinet members, politicians and election experts, was formed two years ago to ensure a secure election that maximizes voter confidence by providing advice to election officials and voters on a range of potential problems.

One idea under discussion is to ask former presidents Bush and Democrat Barack Obama to address U.S. voters should the validity of the election result be questioned.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“DHS withheld July intelligence bulletin calling out Russian attack on Biden’s mental health”<https://electionlawblog.org/?p=114709>
Posted on September 2, 2020 10:43 am<https://electionlawblog.org/?p=114709> by Rick Hasen<https://electionlawblog.org/?author=3>

ABC News<https://abcnews.go.com/Politics/dhs-withheld-july-intelligence-bulletin-calling-russian-attack/story?id=72747130&cid=social_twitter_abcn>:

In early July the Department of Homeland Security withheld publication of an intelligence bulletin warning law enforcement agencies of a Russia<https://abcnews.go.com/alerts/russia-nation>n scheme to promote “allegations about the poor mental health” of former Vice President Joe Biden<https://abcnews.go.com/alerts/joe-biden>, according to internal emails and a draft of the document obtained by ABC News.

The draft bulletin, titled “Russia Likely to Denigrate Health of US Candidates to Influence 2020 Election,” was submitted to the agency’s legislative and public affairs office for review on July 7. The analysis was not meant for public consumption, but it was set to be distributed to federal, state and local law enforcement partners two days later, on July 9, the emails show.

Just one hour after its submission, however, a senior DHS official intervened.

“Please hold on sending this one out until you have a chance to speak to [acting Secretary of Homeland Security Chad Wolf],” wrote DHS Chief of Staff John Gountanis, according to an email obtained by ABC News.

That was nearly two months ago. But the bulletin was never circulated.

In a statement to ABC News, a DHS spokesperson confirmed that the product was “delayed,” explaining that it failed to meet the agency’s standards.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, cheap speech<https://electionlawblog.org/?cat=130>


Arizona Lawsuit Seeks to Keep Kanye West Off State Ballot Because He is a Registered Republican But Is Running as an Independent (In Violation of State Law Per Plaintiffs)<https://electionlawblog.org/?p=114707>
Posted on September 2, 2020 10:33 am<https://electionlawblog.org/?p=114707> by Rick Hasen<https://electionlawblog.org/?author=3>

Read the complaint.<https://www.documentcloud.org/documents/7180233-2020-08-31-Clayton-West-Application-for.html>
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Posted in ballot access<https://electionlawblog.org/?cat=46>, Uncategorized<https://electionlawblog.org/?cat=1>


Trump Campaign Files Federal Lawsuit Against Montana’s Expanded Mail-In Balloting in November<https://electionlawblog.org/?p=114703>
Posted on September 2, 2020 10:15 am<https://electionlawblog.org/?p=114703> by Rick Hasen<https://electionlawblog.org/?author=3>

Read the complaint.<https://electionlawblog.org/wp-content/uploads/D.-Mont-Compl.-09.02.pdf>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“This Is Democrats’ Doomsday Scenario for Election Night: What if early results in swing states on Nov. 3 show President Trump ahead, and he declares victory before heavily Democratic mail-in votes, which he has falsely linked with fraud, are fully counted?”<https://electionlawblog.org/?p=114701>
Posted on September 2, 2020 10:11 am<https://electionlawblog.org/?p=114701> by Rick Hasen<https://electionlawblog.org/?author=3>

Trip Gabriel<https://www.nytimes.com/2020/09/02/us/politics/voting-election-day.html?referringSource=articleShare> for the NYT:

In Michigan, Ms. Benson predicted that three million votes would be cast by mail this year, 60 percent of the total. She has called for changes<https://www.michigan.gov/sos/0,4670,7-127--536718--,00.html> to let election clerks process absentee ballots early — opening envelopes, contacting voters if ballot signatures don’t match registrations, and beginning the counting. If the changes don’t pass in the Republican-led Legislature, full results may not be known until the Friday or Saturday after Nov. 3, Ms. Benson said. “Time is running out.”

Currently, 12 states<https://www.ncsl.org/research/elections-and-campaigns/vopp-table-16-when-absentee-mail-ballot-processing-and-counting-can-begin.aspx> do not allow mail-in ballots to be processed before Election Day, including the battlegrounds of Michigan, New Hampshire, Pennsylvania and Wisconsin.

A Democratic data group backed by Michael R. Bloomberg said this week that it was likely that Mr. Trump would appear to have won on election night by a landslide, a scenario it called “a red mirage.”…

A spokeswoman for the Trump campaign, Thea McDonald, called Democrats’ concerns about the president prematurely declaring victory “an unsubstantiated conspiracy theory,” adding, “President Trump and his campaign are fighting for a free, fair, transparent election in which every valid ballot counts — once.”

The president has raged against mail voting all year<https://www.nytimes.com/2020/06/24/us/politics/trump-vote-by-mail.html>, tweeting<https://twitter.com/realDonaldTrump/status/1265255835124539392?s=20> in May that “there is NO WAY (ZERO!) that Mail-In Ballots will be anything less than substantially fraudulent.”…

While TV viewers are used to election night projections of who has won, some broadcast and digital journalists are discussing ways to clearly inform voters<https://www.nytimes.com/2020/08/02/business/media/election-coverage.html> that results may be incomplete.

A claim of victory on election night by Mr. Trump, before results are certified by officials, would have no legal effect, Dr. Hasen said. “That said,” he added, “it could have a great political effect and convince his most ardent supporters that he has won the election and any changes in the counts are due to fraud. That’s really a huge concern.”

Anthony Spano, a Trump supporter in Old Forge, Pa., said the president was “so right” when he warned of potential fraud by Democrats. “If they think there’s unrest now, just wait to see if they try to steal this election,” said Mr. Spano, who has worked as a truck mechanic. “Personally, I think people that are nonviolent, we’re going to get very violent.”
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, Election Meltdown<https://electionlawblog.org/?cat=127>


“Baltimore postal facility sat on 68,000 pieces of election mail for 5 days ahead of primary, audit shows” (not ballots)<https://electionlawblog.org/?p=114699>
Posted on September 2, 2020 10:01 am<https://electionlawblog.org/?p=114699> by Rick Hasen<https://electionlawblog.org/?author=3>

Baltimore Sun<https://www.baltimoresun.com/politics/bs-md-pol-postal-service-baltimore-audit-20200902-23yhohiebnaw3ipzpgi57qoqpu-story.html>:

An audit of U.S. Postal Service performance during this year’s primary election season has found 68,000 pieces of political mail sat untouched at a Baltimore mail processing facility for five days ahead of the June 2 primary.

Baltimore was in the midst of several contentious political races at the time, including mayor, comptroller and City Council president. Numerous candidates for those offices spent thousands of dollars<https://www.baltimoresun.com/politics/elections/bs-md-ci-mayor-spending-per-vote-20200831-7cikbdnbv5hxrho42s7ws4xr6y-story.html> on campaign mailers in an attempt to sway voters in the close election.

Ballots destined for those voters were also in the mail stream during the window when the political mail sat at the facility, but the audit specifically stated the delayed pieces were not ballots.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Biden posts stunning monthly cash haul: $365 million”<https://electionlawblog.org/?p=114696>
Posted on September 2, 2020 9:48 am<https://electionlawblog.org/?p=114696> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2020/09/02/biden-staggering-monthly-cash-haul-407712>

Joe Biden and the Democratic National Committee reported raising a record $365 million in August, surprising even seasoned party fundraisers and putting to rest fears that President Trump would drown him in campaign spending.

The staggering cash coincides with Biden naming Sen. Kamala Harris as his running mate before the convention. It more than doubles Trump’s $165 million record, set in July, and also eclipses the $193 million raised by Barack Obama in September 2008. Trump has not yet announced his August numbers…

Biden’s campaign anticipated announcing his total on Tuesday, but so many checks from small-dollar donors kept coming in that day thatit delayed his team from giving a total until Wednesday.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>


Texas Supreme Court Temporarily Blocks Harris County from Sending Out Absentee Ballot Applications to Voters<https://electionlawblog.org/?p=114694>
Posted on September 2, 2020 9:42 am<https://electionlawblog.org/?p=114694> by Rick Hasen<https://electionlawblog.org/?author=3>

The stay is in effect<https://www.txcourts.gov/supreme/orders-opinions/2020/september/september-2-2020/> as the court considers whether to grant emergency relief.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“More mail-in voting doubles the chances of recounts in close states”<https://electionlawblog.org/?p=114692>
Posted on September 2, 2020 9:16 am<https://electionlawblog.org/?p=114692> by Rick Hasen<https://electionlawblog.org/?author=3>

Analysis from The Economist.<https://www.economist.com/united-states/2020/08/22/more-mail-in-voting-doubles-the-chances-of-recounts-in-close-states>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Detroit, Michigan secretary of state partner to ensure integrity of November election”<https://electionlawblog.org/?p=114689>
Posted on September 2, 2020 9:12 am<https://electionlawblog.org/?p=114689> by Rick Hasen<https://electionlawblog.org/?author=3>

Good news:<https://www.detroitnews.com/story/news/politics/2020/09/02/detroit-sos-jocelyn-benson-partner-november-election/5689364002/>

Detroit Clerk Janice Winfrey and Michigan Secretary of State Jocelyn Benson announced a partnership Wednesday aimed at ensuring the “integrity and accessibility” of the Nov. 3 election in the state’s largest city.

The partnership comes after recorded ballot counts in 72% of Detroit’s absentee voting precincts didn’t match the number of ballots cast in the Aug. 4. primary<https://www.detroitnews.com/story/news/politics/2020/08/20/benson-asked-investigate-detroit-perfect-storm-voting-problems/5616629002/>. The out-of-balance totals mean the precincts’ results likely couldn’t be recounted in a close race under state law and spurred the Michigan Board of State Canvassers last month to ask Benson to oversee the city’s election.

The new collaboration will involve hiring staff to support the city clerk’s office — including Chris Thomas, who was Michigan’s elections director for more than 30 years, as a senior adviser — and revising protocols for ballot counting and sorting, according to a press release.

Bringing in Chris Thomas is great. Detroit needs all the help it can get.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Blunting Foreign Interference Efforts by Learning the Lessons of the Past”<https://electionlawblog.org/?p=114687>
Posted on September 2, 2020 9:10 am<https://electionlawblog.org/?p=114687> by Rick Hasen<https://electionlawblog.org/?author=3>

New report from CAP<https://www.americanprogress.org/issues/security/reports/2020/09/02/489865/blunting-foreign-interference-efforts-learning-lessons-past/>.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D114687&title=%E2%80%9CBlunting%20Foreign%20Interference%20Efforts%20by%20Learning%20the%20Lessons%20of%20the%20Past%E2%80%9D>
Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>


“Digital Disinformation and Vote Suppression”<https://electionlawblog.org/?p=114685>
Posted on September 2, 2020 9:04 am<https://electionlawblog.org/?p=114685> by Rick Hasen<https://electionlawblog.org/?author=3>

New Brennan Center report<https://www.brennancenter.org/our-work/research-reports/digital-disinformation-and-vote-suppression>.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D114685&title=%E2%80%9CDigital%20Disinformation%20and%20Vote%20Suppression%E2%80%9D>
Posted in campaigns<https://electionlawblog.org/?cat=59>, cheap speech<https://electionlawblog.org/?cat=130>, chicanery<https://electionlawblog.org/?cat=12>


“Editorial: Ranked-choice voting could racially diversify councils.”<https://electionlawblog.org/?p=114683>
Posted on September 2, 2020 8:59 am<https://electionlawblog.org/?p=114683> by Rick Hasen<https://electionlawblog.org/?author=3>

Mercury News editorial<https://www.mercurynews.com/2020/09/02/editorial-ranked-choice-voting-could-racially-diversify-councils/>.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D114683&title=%E2%80%9CEditorial%3A%20Ranked-choice%20voting%20could%20racially%20diversify%20councils.%E2%80%9D>
Posted in alternative voting systems<https://electionlawblog.org/?cat=63>


--
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
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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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