[EL] more news and commentary 9/3/20

[Rick Hasen]

“Donald Trump’s Encouragement to Vote Twice Could Cause Election Day Chaos”<https://electionlawblog.org/?p=114749>
Posted on September 3, 2020 1:05 pm<https://electionlawblog.org/?p=114749> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2020/09/donald-trump-vote-twice-election-day-chaos.html> for Slate. A snippet:

Another possible defense is that Trump was “joking” or not being serious about his comments and this was typical Trumpian hyperbole. Perhaps so, and I do not expect Trump to be prosecuted, but I think many people may hear his comments and think he is serious. This is particularly true given that he repeated the comments the very next day and his attorney general, William Barr, refused to acknowledge<https://twitter.com/atrupar/status/1301299333938151424> that double voting is illegal.

And this is the much more important point than whether Trump violated North Carolina law with his statement to WECT. Supporters of his, in North Carolina and elsewhere, could follow his advice and try to vote twice. Those people face potential prosecution for a felony, as the North Carolina State Board of Elections made clear in a Thursday statement<https://twitter.com/NCSBE/status/1301527393799213056/photo/1>, and it is awful for the president to be encouraging illegal conduct.

What’s worse, the comments are going to put a strain on an election system stretched to its limits by trying to conduct a presidential election in the midst of a pandemic and with one of the candidates constantly casting doubt on the election’s legitimacy. Again, this is probably Trump’s real intent. North Carolina, like other states, has systems in place<https://twitter.com/NCSBE/status/1301527393799213056/photo/1> to prevent double voting, such as electronic poll books that let poll workers know if someone showing up to vote has already cast an absentee ballot that has been returned. (It is these checks that slow down the processing of absentee ballots and explain why we might not have results on election night in a close election.)

But these systems are designed under the sensible premise that few people are going to risk felonies and vote twice. It’s the same design for police departments, which would look very different if people were trying to rob every 7-Eleven every day.

Lines are already going to be long in some places on Election Day. The pandemic means it is harder to find poll workers and so there will be polling place consolidations and fewer workers, all contributing to a longer queue. Trump’s suggestion for his supporters to go to a polling place to try to vote twice—and via a complex procedure of trying to get a poll worker to confirm that an absentee ballot has been tabulated, which in some cases it will not have been—will add to those long lines. The lines will be even longer if the voter insists on casting a provisional ballot after having voted by mail. (That provisional ballot won’t be counted if the voter has already voted.) Those long lines will do real damage to an Election Day infrastructure that is already looking stretched to the limits—the ensuing chaos will benefit the candidate claiming that the whole process is rigged no matter what the outcome: Donald Trump.

Trump has cast doubt on the legitimacy of the election, claiming that voter fraud is widespread in the United States when it is rare. These new statements seem calculated to create more confusion and chaos at the polls—and possibly more actual fraud. It will also cause more people potentially with COVID to congregate at the polls, exactly the opposite of what we need for a safe and fair election during November.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, election administration<https://electionlawblog.org/?cat=18>, Election Meltdown<https://electionlawblog.org/?cat=127>


“This can’t go on’: Detroit primary ballots went unchecked, GOP poll challengers say”<https://electionlawblog.org/?p=114747>
Posted on September 3, 2020 9:26 am<https://electionlawblog.org/?p=114747> by Rick Hasen<https://electionlawblog.org/?author=3>

Troubling reports<https://www.detroitnews.com/story/news/politics/2020/09/02/republican-observers-say-detroit-ballots-went-unchecked/5680540002/> in the Detroit News:

Election workers in Detroit’s primary improperly altered some votes and counted thousands of absentee ballots without checks against voter lists, say GOP poll challengers who contend Michigan’s largest city isn’t ready for November’s election.

Detroit, where problems counting ballots have been in the spotlight for at least 15 years, is quickly becoming a key front in the political fight over election integrity. Republicans are signing affidavits about problems they saw in the Aug. 4 primary, while Democratic state officials are taking steps they hope will improve ballot handling in the general election.

About 25 Michigan Republicans monitored the counting of absentee ballots in the basement of the TCF Center in Detroit for the Aug. 4 primary. They reported a variety of missteps that — if accurate — would violate policies in state manuals, ranging from cellphones being used by workers to votes being counted without lists of voters on hand to check the ballots against, according to interviews with eight poll challengers and signed affidavits from five.

A handful of the GOP poll challengers contended that they saw election workers make digital changes to disregard lone Republican votes on ballots featuring mostly Democratic votes in a bid to make the ballots legally countable in the partisan primary, where voters are not allowed to cross over.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Facebook will limit some advertising in the week before the US election — but it will let politicians run ads with lies”<https://electionlawblog.org/?p=114744>
Posted on September 3, 2020 8:30 am<https://electionlawblog.org/?p=114744> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN<https://www.cnn.com/2020/09/03/tech/facebook-political-ads-election/index.html>:

In an attempt to combat efforts to undermine the US presidential election in November, Facebook on Thursday took several steps it says will address concerns about election interference<http://www.cnn.com/2020/09/02/politics/what-matters-september-1/index.html> on its platform.

But Facebook will continue to allow politicians to run lies in ads<http://www.cnn.com/2020/09/01/tech/trump-facebook-twitter-fact-check/index.html> through Election Day.CEO Mark Zuckerberg announced<https://about.fb.com/news/2020/09/additional-steps-to-protect-the-us-elections/> that the company would not accept new political ads in the final week of the 2020 election campaign. The company will remove posts that claim that people will get Covid-19 if they take part in voting, and it will label misinformation<http://www.cnn.com/2020/09/01/tech/russian-troll-group-facebook-campaign/index.html> about the election and voting. Facebook also said it will direct people to Reuters’ election results if candidates declare victory before final results are tallied.

However, Facebook (FB<https://money.cnn.com/quote/quote.html?symb=FB&source=story_quote_link>) will continue to allow campaigns to run ads bought before the final week. Those ads can still run through Election Day. And Zuckerberg made no indication that Facebook would change its policy of allowing politicians to lie in targeted ads, meaning political candidates will be able to run false ads on the platform up until election day.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, cheap speech<https://electionlawblog.org/?cat=130>


The Most Important Election Story You’ll Read Today: “‘Can you imagine if we’re waiting on Pennsylvania?’: State Dems scramble to avoid voting fiasco”<https://electionlawblog.org/?p=114742>
Posted on September 3, 2020 7:57 am<https://electionlawblog.org/?p=114742> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/news/2020/09/03/pennsylvania-democrats-election-day-408147?nname=playbook&nid=0000014f-1646-d88f-a1cf-5f46b7bd0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=630318>:

With concerns about an Election Day debacle rising in this critical swing state, Pennsylvania Gov. Tom Wolf privately convened a group of Philadelphia Democrats recently to underscore the consequences of another vote-counting fiasco like the one that took place in the June primary.

The city took more than two weeks to count all of its votes due to a massive surge in mail voting amid the coronavirus pandemic — and a repeat performance might make it unclear who won the presidential election in the key battleground state long past Nov. 3.

Wolf’s intervention accentuated the fears that state Democrats have of the nation being forced to wait on Pennsylvania to call the election — and that President Donald Trump might exploit the fact that it could take days or weeks to count mail ballots in states across the country. Trump has already stoked fears of mail-in voting, and Democrats worry that he could falsely claim that delays in Pennsylvania and elsewhere are proof of fraud, or perhaps even declare victory before all of the votes are tallied.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


Ned Foley: The President—and the Poll Worker<https://electionlawblog.org/?p=114740>
Posted on September 3, 2020 7:47 am<https://electionlawblog.org/?p=114740> by Rick Hasen<https://electionlawblog.org/?author=3>

New guest post from Ned Foley:

The news<https://electionlawblog.org/?p=114721> that President Trump suggested that North Carolina voters cast both an absentee and in-person ballot, to test whether the “system” would catch it, reminded me of the case a few years ago in which a Cincinnati poll worker was charged<https://www.foxnews.com/politics/cincinnati-poll-worker-charged-with-voting-half-dozen-times-in-november> and convicted<https://www.usatoday.com/story/news/nation/2013/07/17/cincinnati-illegal-voting/2530119/> of something similar.  While the circumstances are not exactly the same, this sentence from the initial Fox News report<https://www.foxnews.com/politics/cincinnati-poll-worker-charged-with-voting-half-dozen-times-in-november> struck me when I re-read it: “Officials charged that she voted in her own name by absentee ballot and also in person at the polls.”  Isn’t that essentially what the President was urging his supporters to do?   Back when I first heard of the Cincinnati case, I thought that prosecution was appropriate because it is important that government officials not encourage voters to attempt to game the system by intentional double voting.  It is one thing for voters innocently to be confused about the status of an absentee ballot and then go to the polls in an attempt to make sure that they have just one ballot that counts. It’s entirely different to have a premediated plan to vote twice, once by mail and the second time in person, in the hope that both votes might make it through without detection.  What troubled me most from an election integrity perspective about what the President said was the report<https://www.nytimes.com/2020/09/02/us/politics/trump-people-vote-twice.html>, if accurate, that “Mr. Trump’s suggestion that people should vote twice is one he has discussed privately with aides in recent weeks.”  If true, this indicates a degree of deliberativeness that cannot be dismissed as an off-the-cuff remark.  While not suggesting that the President deserves prosecution, I do think it’s appropriate to express concern about an incumbent president skirting so close to conduct for which poll workers are appropriately punished—including, as in the Cincinnati case, by a lengthy term of imprisonment.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Chaos scenarios drive gatekeepers’ election prep”<https://electionlawblog.org/?p=114737>
Posted on September 3, 2020 7:43 am<https://electionlawblog.org/?p=114737> by Rick Hasen<https://electionlawblog.org/?author=3>

Axios:<https://www.axios.com/2020-election-gatekeepers-chaos-scenarios-84181512-1fca-4b84-8c10-e95e02e95f61.html?utm_source=newsletter&utm_medium=email&utm_campaign=newsletter_axiosam&stream=top>

Big Tech is holding dry runs to game out Election Day chaos scenarios, key participants tell Axios.

Axios has learned that Facebook, Google, Twitter and Reddit are holding regular meetings with one another, with federal law enforcement — and with intelligence agencies — to discuss potential threats to election integrity.

Between March 1 and Aug. 1, Twitter practiced its response to scenarios including foreign interference, leaks of hacked materials and uncertainty following Election Day.

Why it matters: The unprecedented 2020 war games show how the Bay Area tech giants are worried that the government doesn’t have the COVID election under control, and are trying to protect their platforms against sinister efforts to game the outcome.

Digital platforms and state and local elections agencies are two of the most important categories of gatekeepers protecting public confidence in the integrity of the Nov. 3 election. With two months to go, they’re stepping up their battle plans.

Americans are expected to vote by mail in record numbers this year, meaning it may be days or weeks before it’s clear who won the presidency and down-ballot races.

Faith in democracy will be at stake in that crucial post-Election Day period.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“What’s the worst that could happen? The election will likely spark violence — and a constitutional crisis”<https://electionlawblog.org/?p=114735>
Posted on September 3, 2020 7:37 am<https://electionlawblog.org/?p=114735> by Rick Hasen<https://electionlawblog.org/?author=3>

Rosa Brooks WaPo<https://www.washingtonpost.com/outlook/2020/09/03/trump-stay-in-office/?arc404=true> opinion piece:

We wanted to know: What’s the worst thing that could happen to our country during the presidential election? President Trump has broken countless norms and ignored countless laws during his time in office, and while my colleagues and I at the Transition Integrity Project<https://en.wikipedia.org/wiki/Transition_Integrity_Project> didn’t want to lie awake at night contemplating the ways the American experiment could fail, we realized that identifying the most serious risks<https://www.msn.com/en-us/news/politics/read-the-transition-integrity-projects-full-report/ar-BB17x0w3> to our democracy might be the best way to avert a November disaster. So we built a series of war games, sought out some of the most accomplished Republicans, Democrats, civil servants, media experts, pollsters and strategists around, and asked them to imagine what they’d do in a range of election and transition scenarios.

A landslide for Joe Biden resulted in a relatively orderly transfer of power. Every other scenario we looked at involved street-level violence and political crisis.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“OpenSecrets unveils new online ads database”<https://electionlawblog.org/?p=114733>
Posted on September 3, 2020 7:34 am<https://electionlawblog.org/?p=114733> by Rick Hasen<https://electionlawblog.org/?author=3>

Release:

With the digital-dominated 2020 election shifting into high gear, OpenSecrets is releasing a new searchable, sortable online ads database<https://opensecrets.us2.list-manage.com/track/click?u=aa7cf182bf7041258bb250f9d&id=35960c4ff3&e=e1132f9b81> that provides comprehensive details about political ad spending on Google and Facebook.

OpenSecrets is tracking over 80,000 online political advertisers, more than four times the number of committees registered with the Federal Election Commission. Each advertiser has its own profile, which includes:
·         Its total spending on both Facebook and Google ads over time
·         Information about and links to each of the Facebook and Google pages where it runs ads
·         Its total Facebook ad spending in each state

Online ads are at the center of strategies to misinform and deceive voters ahead of Election Day. This section will help users identify the online forces behind political messages and better understand their affiliations with political groups. Mysterious “dark money” organizations, industry groups and fake news websites are among the advertisers pouring millions into ads to influence voters.

OpenSecrets used machine learning to group numerous Facebook and Google pages into one distinct profile, allowing users to see the full extent of each advertiser’s political spending. Our partners<https://opensecrets.us2.list-manage.com/track/click?u=aa7cf182bf7041258bb250f9d&id=9645e5b304&e=e1132f9b81> at the Wesleyan Media Project and the NYU Online Political Ads Transparency Project contributed substantially to the data collection for this project, which was made possible by support from Democracy Fund and Media Democracy Fund.

Visit the new Online Ads section here<https://opensecrets.us2.list-manage.com/track/click?u=aa7cf182bf7041258bb250f9d&id=fabf507fb6&e=e1132f9b81>

For over 35 years, the Center for Responsive Politics has empowered Americans with information and helped propel the discussion on transparency in governance. CRP’s in-depth research and analysis reveal important facts about how our nation’s politics and policies are shaped and influenced.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“You Don’t Have to Yell: How Television Corrupted Campaign Finance”<https://electionlawblog.org/?p=114731>
Posted on September 3, 2020 7:29 am<https://electionlawblog.org/?p=114731> by Rick Hasen<https://electionlawblog.org/?author=3>

Podcast<https://youdonthavetoyell.libsyn.com/how-television-corrupted-campaign-finance>:

Ciara Torres-Spelliscy discusses her new book “Political Brands”, which examines the use of commercial branding in politics, and how its high costs paved the way for the runaway costs of elections, and the corrupted campaign finance system that funds it.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“Has Citizens United Increased Corruption? An Examination of Public Corruption Prosecutions”<https://electionlawblog.org/?p=114729>
Posted on September 3, 2020 7:27 am<https://electionlawblog.org/?p=114729> by Rick Hasen<https://electionlawblog.org/?author=3>

New study<https://www.ifs.org/wp-content/uploads/2020/09/2020-09-03_Research_Greven_Citizens-United-And-Corruption-Analysis.pdf> for the Institute for Free Speech:

Ten years after the decision, this report asks if such claims about Citizens United were correct. Did the Supreme Court’s ruling that corporations and unions can speak without limit and contribute unlimited amounts to
finance independent political expenditures increase the amount of corruption in our democracy?

We find no evidence to support this claim. A comparison of public officials charged with corruption offenses by the U.S. Department of Justice nine years before and nine years after the Court’s decision show a decline rather than an increase in corruption. Further, states that were most affected by Citizens United saw a larger decrease in corruption than states unaffected by the decision.

The report considers correlations not causation, and I think there are other explanations (such as this one<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2585260>) for the decline in corruption prosecutions.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


--
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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