[EL] ELB News and Commentary 9/14/20

[Rick Hasen]

Today’s Must-Read: Sue Halpern: “How the Trump Campaign’s Mobile App is Collecting Huge Amounts of Voter Data”<https://electionlawblog.org/?p=115118>
Posted on September 14, 2020 8:12 am<https://electionlawblog.org/?p=115118> by Rick Hasen<https://electionlawblog.org/?author=3>

A wow story <https://www.newyorker.com/news/campaign-chronicles/the-trump-campaigns-mobile-app-is-collecting-massive-amounts-of-voter-data?utm_source=twitter&utm_medium=social&utm_campaign=onsite-share&utm_brand=the-new-yorker&utm_social-type=earned> in the New Yorker:

On its face, Phunware seems like a strange choice to develop the campaign’s app. Before working for President Trump, Phunware’s software was being used in relatively few applications, the most popular being a horoscope app. And, since 2019, it has been embroiled<https://www.statesman.com/news/20190905/uber-countersuit-continues-legal-fight-with-austins-phunware> in a lawsuit with Uber<https://www.adexchanger.com/mobile/inside-ubers-fraud-suit-against-phunware/>, a former client of the company’s ad-placement business. The dispute stems from a yearlong investigation by two former Phunware employees who discovered that the company was pretending to place Uber ads on Web sites like CNN when, in fact, they were appearing on pornography sites, among others, if they appeared at all. But, according to former Phunware employees and business associates, the company’s value to the Trump campaign is not in software development. “The Trump campaign is not paying Phunware four million dollars for an app,” a former business partner of the company told me. “They are paying for data. They are paying for targeted advertising services. Imagine if every time I open my phone I see a campaign message that Joe Biden’s America means we’re going to have war in the streets. That’s the service the Trump campaign and Brad Parscale”—the Trump campaign’s senior adviser for data and digital operations—“have bought from Phunware. An app is just part of the package.”

The Trump 2020 app is an enormous data-collection tool in its own right. When it launched<https://www.foxnews.com/politics/trump-team-launches-new-app-allowing-supporters-to-engage-with-the-campaign-from-their-couch>, on April 23rd, Parscale<https://www.newyorker.com/magazine/2020/03/09/the-man-behind-trumps-facebook-juggernaut>, who was then Trump’s campaign manager<https://www.newyorker.com/news/our-columnists/replacing-a-campaign-manager-wont-rescue-trump-from-the-coronavirus-debacle>, urged his followers on Facebook<https://www.facebook.com/bradparscale/videos/download-the-groundbreaking-official-trump-2020-app/223677255738522/> to “download the groundbreaking Official Trump 2020 App—unlike other lame political apps you’ve seen.” Despite the hype, the 2020 app recapitulates many of the functions found on the 2016 app<https://www.vocativ.com/352580/donald-trump-launched-a-pretty-low-energy-app/index.html>. There’s a news feed with Trump’s social-media posts, an events calendar, and recorded videos. The “gaming” features that distinguished the 2016 app are still prominent—a “Trump’s army” member who accumulates a hundred thousand points by sharing contacts or raising money is promised a photograph with the President, while other members can use points to get discounts on maga gear. Users are prompted to invite friends to download the app—more points!—and can use the app to sign up to make calls on behalf of the campaign, to be a poll watcher, to register voters, and to get tickets to virtual and in-person events….

To access the Trump app, users must share their cell-phone numbers with the campaign. “The most important, golden thing in politics is a cellphone number,” Parscale told Reuters<https://www.reuters.com/article/us-usa-election-trump-idUSKBN2391FT>. “When we receive cellphone numbers, it really allows us to identify them across the databases. Who are they, voting history, everything.” Michael Marinaccio<https://thedatatrust.com/data-trust-coo-marinaccio-on-the-rise-of-political-middleware/>, the chief operating officer of Data Trust, a private Republican data company, said recently that “what’s new this year, or at least a sense of urgency, is getting as many cell-phone numbers as we can in the voter file data.” An effective way to do that is to entice supporters to share not only their own cell-phone numbers with the campaign but those of their contacts as well. One estimate, by Eliran Sapir<https://newslivego.com/the-trump-marketing-campaign-app-is-tapping-a-gold-mine-of-information-about-people/>, the C.E.O. of Apptopia, a mobile-analytics company, is that 1.4 million app downloads could provide upward of a hundred million phone numbers. This will enable the Trump campaign to find and target people who have not consented to handing over their personal information. It’s not unlike how Cambridge Analytica<https://www.newyorker.com/tag/cambridge-analytica> was able to harvest the data of nearly ninety million unsuspecting Facebook users, only this time it is one’s friends, family, and acquaintances who are willfully handing over the data for a chance to get a twenty-five-dollar discount on a maga hat….

So how did Phunware obtain a billion unique device I.D.s? As the company described it to the S.E.C., they were collected from phones and tablets that use Phunware’s software. But, according to people who have worked with the company, in addition to the data it obtains through its software, Phunware has been using its ad-placement business as a wholesale data-mining operation. When it bids to place an ad in an app like, for example, Pandora, it scoops up the I.D. of every phone and tablet that would have been exposed to the ad, even if it loses the bid. By collecting and storing this information, the company is able to compile a fairly comprehensive picture of every app downloaded on those devices, and any registration data a user has shared in order to use the app.

This information can yield rich demographic data. If a campaign is looking for young men with an affinity for guns, for instance, it might look at who has downloaded both Call of Duty and CCW, the Concealed Carry Fifty State app. Then, using the location data associated with the device I.D., the data can be unmasked and linked to an individual. Once a campaign knows who someone is, and where a person lives, it is not difficult to start building a voter file, and using this information to tailor ads and messages.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, cheap speech<https://electionlawblog.org/?cat=130>, chicanery<https://electionlawblog.org/?cat=12>


“Big Voting Decisions in Florida, Wisconsin, Texas: What They Mean for November”<https://electionlawblog.org/?p=115116>
Posted on September 14, 2020 8:02 am<https://electionlawblog.org/?p=115116> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT explainer.<https://www.nytimes.com/2020/09/13/us/politics/Voting-rights-Florida-Wisconsin-Texas.html>
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


“Bloomberg Says He’ll Spend $100 Million in Florida to Help Biden”<https://electionlawblog.org/?p=115114>
Posted on September 14, 2020 8:01 am<https://electionlawblog.org/?p=115114> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/09/13/us/politics/bloomberg-florida-biden.html>

Michael R. Bloomberg, the former New York City mayor and presidential candidate, announced Sunday that he planned to spend $100 million in Florida in the coming weeks to support Joseph R. Biden Jr.<https://www.nytimes.com/interactive/2020/us/elections/joe-biden.html>’s presidential candidacy.

The pledge came as new<https://www.nytimes.com/2020/09/09/us/elections/a-florida-poll-found-the-candidates-tied-but-with-shifting-sources-of-support.html> polls<https://www.nytimes.com/2020/09/12/us/politics/trump-scandals-woodward-midwest.html> showed a particularly tight race between Mr. Biden and President Trump<https://www.nytimes.com/interactive/2020/us/elections/donald-trump.html> in Florida, a key battleground state that carries 29 electoral votes.

The announcement also followed criticism<https://www.nytimes.com/2020/08/20/us/politics/michael-bloomberg-dnc.html> from within the Democratic Party — in spite of a huge $18 million transfer<https://www.nytimes.com/2020/03/20/us/politics/michael-bloomberg-dnc.html> to the Democratic National Committee this spring — that Mr. Bloomberg had not delivered on his promise to put the full weight of his fortune behind the general-election effort to defeat Mr. Trump.

The commitment in Florida, while enormous for a one-state program, represents a significant pullback from the promises made by some Bloomberg advisers during primary season. Mr. Bloomberg’s campaign manager, Kevin Sheekey, had told Democrats privately that if Mr. Bloomberg were not the nominee he would form a new super PAC and mount an enormous effort against Mr. Trump in the country’s biggest swing states.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>, Plutocrats United<https://electionlawblog.org/?cat=104>


“No Pennsylvania counties able to send out ballots”<https://electionlawblog.org/?p=115112>
Posted on September 14, 2020 7:57 am<https://electionlawblog.org/?p=115112> by Rick Hasen<https://electionlawblog.org/?author=3>

WPXI:<https://www.wpxi.com/news/top-stories/no-pennsylvania-counties-able-send-out-ballots/U7XFDGQH3RBCRNN4EUJOEAQT5I/>

In the latest sign of the chaos<https://www.cnn.com/2020/09/12/politics/colorado-voting-election-mailers-usps/index.html> overshadowing the 2020 election<https://www.cnn.com/election/2020>, none of Pennsylvania’s counties will be able to send out ballots to voters Monday, the first day the critical battleground state<https://www.cnn.com/election/2020/electoral-college-interactive-maps> allows counties to do so.

Due to a slew of lawsuits <https://www.cnn.com/2020/08/31/politics/election-2020-voting-litigation/index.html> and other issues, the commonwealth, which has drawn intense interest from Democrats and Republicans after June’s disastrous primary, has not finalized its ballot less than eight weeks before Election Day.

The state’s Democratic Party remains in court battling to keep the Green Party off the ballot. The pending legal dispute has led to a delay in certification of the November ballot, and as a result, all Pennsylvania county election officials who this year could have started offering absentee or mail-in ballots, as well as in-person early absentee voting, starting September 14 are in a holding pattern.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“There’s nothing stopping the RNC from using voter intimidation tactics in November now that a decades-old agreement has ended, experts warn”<https://electionlawblog.org/?p=115110>
Posted on September 14, 2020 7:53 am<https://electionlawblog.org/?p=115110> by Rick Hasen<https://electionlawblog.org/?author=3>

Business Insider reports<https://www.businessinsider.com/rnc-engage-voter-intimidation-because-1982-consent-decree-ended-2020-9>.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, The Voting Wars<https://electionlawblog.org/?cat=60>


“Court examines North Carolina’s new law that requires photo IDs for voting”<https://electionlawblog.org/?p=115108>
Posted on September 14, 2020 7:50 am<https://electionlawblog.org/?p=115108> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/local/legal-issues/court-to-examine-north-carolinas-new-law-that-requires-photo-ids-for-voting/2020/09/10/1a2608b2-f366-11ea-bc45-e5d48ab44b9f_story.html>:

A federal appeals court on Friday struggled with how to weigh North Carolina’s history of discriminatory voting restrictions <https://www.washingtonpost.com/local/public-safety/appeals-court-strikes-down-north-carolinas-voter-id-law/2016/07/29/810b5844-4f72-11e6-aa14-e0c1087f7583_story.html?itid=lk_inline_manual_1> while examining the state’s latest election law that requires voters to present photo identification before casting ballots.

The new photo ID provision has been blocked by federal and state judges, and will not apply in the November election. Officials in the swing state<https://www.washingtonpost.com/graphics/2020/politics/north-carolina-political-geography/?itid=lk_inline_manual_3> began mailing absentee ballots last week.<https://www.washingtonpost.com/politics/north-carolina-voting-begins/2020/09/04/c291fc76-eec1-11ea-ab4e-581edb849379_story.html?itid=lk_inline_manual_3>

Ahead of oral arguments before the U.S. Court of Appeals for the 4th Circuit, Gov. Roy Cooper (D) urged the judges to prevent the measure, known as S.B. 824, from taking effect over objections from Republican legislative leaders.

“Lifting the injunction now would be disastrous,” lawyers for the governor told the judges in court filings. “The brunt would be borne by the same voters whom S.B. 824 targeted for disenfranchisement in the first place: minority voters who are both least likely to possess photo IDs that satisfy S.B. 824 and most vulnerable to COVID-19.”

The photo ID requirement is the latest in a series of North Carolina election measures scrutinized in court. The law was passed after the 4th Circuit struck down a separate set of voting rules that the court said in 2016 deliberately undercut the political power of Black voters and “target African Americans with almost surgical precision<http://www.ca4.uscourts.gov/Opinions/Published/161468.P.pdf>.”

The three judges hearing the case — Pamela Harris, Julius N. Richardson and A. Marvin Quattlebaum Jr. — asked lawyers on both sides how they should account for the state’s political past when considering the current law.

“I understand that we can’t just ignore that. At the same time,” said Harris, a nominee of President Barack Obama, “the fact that a legislature passes one voter law with a discriminatory intent doesn’t forever disable a legislature from passing a voter ID law.” And she said, “this one is better. It has these ameliorative features that the prior law didn’t have.”
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Posted in election administration<https://electionlawblog.org/?cat=18>, The Voting Wars<https://electionlawblog.org/?cat=60>, voter id<https://electionlawblog.org/?cat=9>


“The three words that can avert an election nightmare”<https://electionlawblog.org/?p=115105>
Posted on September 14, 2020 7:48 am<https://electionlawblog.org/?p=115105> by Richard Pildes<https://electionlawblog.org/?author=7>

CNN has published this<https://www.cnn.com/2020/09/14/opinions/election-2020-vote-by-mail-absentee-pildes/index.html> op-ed of mine on what voters can do at this point to minimize the risk of an election meltdown. My contract with them permits me to offer only this very brief excerpt, so take a look at the piece if you want a better understanding of the argument:

The most important thing most voters need to know for this fall’s election can be expressed in three words: Vote in person. . . . . No doubt that will sound surprising, after all the fights to expand<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.cnn.com_2020_09_05_politics_mailers-2Dlawsuits-2Dvote-2Dby-2Dmail-2Dexpansion_index.html&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=NBeZoRdfrBNo55OLuow1BeC2ZmwHBCp1s_MOzHwHE68&s=4oAgnyddQQjNHN_RQygJSaW9-rVrvbR6Sepx9oKQnNA&e=> mail-in and absentee ballot options. Yet no action is more critical to avoiding an election nightmare.

Like every aspect of this year’s election, the way people plan to vote has become politicized and polarized. …

We need to cut through that politicization to be clear-eyed about the … risk that [arises] if the election outcome turn[s] on millions of absentee ballots that cannot be counted until after Election Night.  …

Voting in person is the single most effective action voters can take to reduce the risk of election turmoil. [T]he difference between 35% and 60% of the vote being cast absentee could be the difference between an outcome broadly accepted as legitimate and one that portions of the country never accepts.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Mismatched signatures prompt tossed absentee ballots and legal fights ahead of November election”<https://electionlawblog.org/?p=115103>
Posted on September 14, 2020 7:47 am<https://electionlawblog.org/?p=115103> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN<https://www.cnn.com/2020/09/14/politics/election-2020-ballot-signature-mismatches/index.html>:

Legal fights over absentee votes aren’t a new phenomenon, but they’ve taken on a newfound importance because of the surge in requests for mail-in ballots and states expanding access to vote-by-mail and, in some cases, conducting elections almost entirely by mail for the first time….

The expanded mail-in voting has also led to more ballots being rejected — with signature problems a key factor.

“You’re much more likely to have your vote counted if you cast it in person. But for some people, that’s not a safe option in November,” said election law expert Rick Hasen, a professor at the University of California, Irvine and a CNN analyst.

“Ordinarily, if you’re going to roll out mail-in balloting on a large scale, you do a big voter education effort,” Hasen added. “But there’s not really time for that or resources for that because of the pandemic.”
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“Biden Creates Legal War Room, Preparing for a Big Fight Over Voting”<https://electionlawblog.org/?p=115101>
Posted on September 14, 2020 7:40 am<https://electionlawblog.org/?p=115101> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/09/14/us/politics/biden-legal-challenges-trump.html?campaign_id=9&emc=edit_nn_20200914&instance_id=22169&nl=the-morning%C2%AEi_id=77905747%C2%A7ion_index=1%C2%A7ion_name=big_story&segment_id=38010&te=1&user_id=7e881804bdbb6c70fc879d696f8c8bdd>

Joseph R. Biden Jr.<https://www.nytimes.com/interactive/2020/us/elections/joe-biden.html>’s campaign is establishing a major new legal operation, bringing in two former solicitors general and hundreds of lawyers in what the campaign billed as the largest election protection program in presidential campaign history.

Legal battles are already raging over how people will vote — and how ballots will be counted — this fall during the pandemic, and senior Biden officials described the ramp-up as necessary to guard the integrity of a fall election already clouded by President Trump’s baseless accusations of <https://www.nytimes.com/2020/06/24/us/politics/trump-vote-by-mail.html> widespread fraud.

The new operation will be overseen by Dana Remus, who has served as Mr. Biden’s general counsel on the 2020 campaign, and Bob Bauer, a former White House counsel during the Obama administration who joined the Biden campaign full-time over the summer as a senior adviser.

Inside the campaign, they are creating a “special litigation” unit, which will be led by Donald B. Verrilli Jr. and Walter Dellinger, two former solicitors general, who are joining the campaign. Hundreds of lawyers will be involved, including a team at the Democratic law firm Perkins Coie, led by Marc Elias, which will focus on the state-by-state fight over vote casting and counting rules. And Eric H. Holder Jr., the former attorney general in the Obama administration, will serve as something of a liaison between the campaign and the many independent groups involved in the legal fight over the election, which is already raging in the courts.

“We can and will hold a free and fair election this fall and be able to trust the results,” Ms. Remus said in an interview.

Mr. Bauer, who was general counsel on both of Barack Obama’s presidential campaigns, said the operation would be “far more sophisticated and resourced” than those during past campaigns.

Ms. Remus and Mr. Bauer outlined a multipronged program that will include some elements common to past presidential campaigns, such as fighting off voter suppression and ensuring people understood how to vote, and some more unique to 2020, such as administering an election during a pandemic and guarding against foreign interference.

“There are,” Mr. Bauer said, “some unique challenges this year.”…

Biden officials say they are trying to strike a delicate balance, responding to Mr. Trump’s wild theories without spreading them further.

“A lot of what Trump and his allies would have us do is amplify their disaster scenarios,” Mr. Bauer said. “We’re not going to get caught up in alarmist rhetoric they are using to scare voters.”

“The constant return to the issue of fraud is itself a voter suppression tool,” he added.

Mr. Trump’s talk of fraud drew a notable Republican rebuke last week, when Benjamin L. Ginsberg, one of the party’s top elections lawyers for decades, wrote a scathing Washington Post op-ed article<https://www.washingtonpost.com/opinions/2020/09/08/republicans-have-insufficient-evidence-call-elections-rigged-fraudulent/>.
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Posted in election law biz<https://electionlawblog.org/?cat=51>, Election Meltdown<https://electionlawblog.org/?cat=127>, The Voting Wars<https://electionlawblog.org/?cat=60>


“State Election Chiefs Should Be Umpires, Not Players”<https://electionlawblog.org/?p=115099>
Posted on September 14, 2020 7:22 am<https://electionlawblog.org/?p=115099> by Rick Hasen<https://electionlawblog.org/?author=3>

Kevin Johnson<https://www.governing.com/now/State-Election-Chiefs-Should-Be-Umpires-Not-Players.html> for Governing.
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Posted in election administration<https://electionlawblog.org/?cat=18>


Green Party Demands Ruling Today from Wisconsin Supreme Court About Getting on State Ballot<https://electionlawblog.org/?p=115097>
Posted on September 14, 2020 7:20 am<https://electionlawblog.org/?p=115097> by Rick Hasen<https://electionlawblog.org/?author=3>

Release<http://us20.forward-to-friend.com/forward/show?u=b41d63c12ee29143634ebbb28&id=7b764c2cc2>:

The Green Party candidates for president and vice-president are demanding that the Wisconsin Supreme Court put them on the ballot today.

“The court should have made a decision by now. We want a decision today to put us on the ballot. We want the absentee ballot process to proceed without further delay,” said Howie Hawkins, the Green presidential candidate.

The delay in the printing of the absentee ballots that are supposed to be mailed out by September 17 was precipitated by objections by Democratic members of the Wisconsin Elections Commission (WEC). WEC staff certified that over 3,000 signatures on the Greens’ ballot petitions were from qualified voters, well over the 2,000 required.

However, Democrats objected that vice presidential candidate Angela Walker did not properly inform the WEC of her address change within her current home town of Florence, South Carolina. At an August 20 hearing on the the case, a motion to place the Greens on the ballot failed 3-3 in a partisan vote by the commissioners. The Greens appealed to the Wisconsin Supreme Court. Republican justices on the court bench hold a 4-3 majority.

“I filed my address change properly to the Wisconsin Elections Commission as they instructed me to when our campaign informed them of my address change. The Democrat chairing the hearing concerning Democratic objections to my filing prevented that documentation from being presented. They had that information in hand. The Democratic commissioners could have resolved the problem last month at the hearing. Instead, they are playing politics with Wisconsin voters. They could end this now by withdrawing their phony objections. The Democratic commissioners are as guilty as the Republican justices in this hold-up of absentee ballots,” said Angela Walker, the Greens’ vice presidential candidate.

Hawkins said the court’s request for information last Tuesday on whether ballots had been mailed is now moot. No ballots were mailed, according to reporting by the Milwaukee Sentinel Journal<https://www.jsonline.com/story/news/politics/2020/09/11/absentee-voting-wisconsin-clerks-put-mailings-hold-pending-ruling/3468612001/>.

“The Republican-majority court has all the information it needs to place us on the ballot and let the absentee voting process move forward. The Democrats have all the information they need to know their case is baseless and drop it. It’s time for both parties stop this partisan jockeying at the expense of Wisconsin voters,” Hawkins said.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, third parties<https://electionlawblog.org/?cat=47>


“How to Know if the Election Is Actually ‘Rigged’; The November vote could be legitimate even if the voting process is flawed. A stable democracy depends on everyone being able to tell the difference”<https://electionlawblog.org/?p=115075>
Posted on September 13, 2020 11:19 am<https://electionlawblog.org/?p=115075> by Rick Hasen<https://electionlawblog.org/?author=3>

Important Ned Foley in Politico<https://www.politico.com/news/magazine/2020/09/13/how-to-know-if-the-election-is-actually-rigged-412557>:

/already, both nominees have suggested that if they lose, it will be because of wrongdoing on the other side, raising the prospect that they might not accept a loss. In a speech in August, President Donald Trump proclaimed, “The only way we’re going to lose this election is if the election is rigged.” The month before, Democrat Joe Biden declared<https://www.washingtonpost.com/politics/biden-predicts-that-trump-will-try-to-indirectly-steal-the-election/2020/07/23/cc55fe98-cd3c-11ea-91f1-28aca4d833a0_story.html> that by discouraging voters from casting mail-in ballots, Trump will “try to indirectly steal the election.” Hillary Clinton, the previous Democratic nominee, went further, saying, “Joe Biden should not concede under any circumstances because I think this is going to drag out, and eventually, I do believe he will win if we don’t give an inch.”

It’s clear from this kind of provocative rhetoric that both sides need reminding of the lesson of 1884 — and a core tenet of the American electoral system: Not every defect in the voting process renders an election invalid. Now, perhaps more than ever — with all the uncertainty that the pandemic brings to the election this fall — we must draw a bright line between a flawed election and one that has truly failed. A flawed election is not ideal, but its results still should be accepted, unlike in a failed election, which does not represent the choice of the voters.

There are two key points to understand here in the context of the current election. First, disinformation, even by ill-willed foreign adversaries, does not, in itself, invalidate an election. Second, disenfranchisement, as abhorrent as it is, invalidates an election only when it exists on a scale large enough to affect the election’s outcome. What matters<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3535185> isn’t whether the process was perfect, but whether the democratic will of the people was served.

All elections have flaws. And in today’s environment of mistrust, it’s easy for politicians to exploit those flaws to cast doubt on the whole result. When problems inevitably arise this fall — and when the two sides inevitably raise objections — then the loser, the loser’s party and the American people need to be prepared to know whether there truly is cause for some kind of recount or “redo,” or whether to accept the electoral verdict and move on. What should we look for?
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, The Voting Wars<https://electionlawblog.org/?cat=60>


Protecting Against Foreign Manipulation of the Voter-Registration Rolls<https://electionlawblog.org/?p=115072>
Posted on September 13, 2020 6:39 am<https://electionlawblog.org/?p=115072> by Richard Pildes<https://electionlawblog.org/?author=7>

In this NYTimes survey<https://www.nytimes.com/2020/09/09/opinion/sunday/election-security-trump.html?action=click&module=Opinion&pgtype=Homepage> of security experts about potential risks to the election process and ways to forestall them, I think this suggestion from Michael Chertoff is worth highlighting:

But defenses are not perfect, so we also need ways to recover in case of a breach. Election officials should periodically download registration data to systems that are not connected to the internet and identify all the underlying infrastructure that needs to run for everything else to work. Even better, election officials should frequently generate paper records of registration data, which can be used as a last resort. While manual processing is slow, it is demonstrably reliable and available.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“How to Know if the Election Is Actually ‘Rigged’”<https://electionlawblog.org/?p=115068>
Posted on September 13, 2020 6:09 am<https://electionlawblog.org/?p=115068> by Richard Pildes<https://electionlawblog.org/?author=7>

This is a must-read piece<https://www.politico.com/news/magazine/2020/09/13/how-to-know-if-the-election-is-actually-rigged-412557> from Ned Foley on the importance of recognizing the difference between problems in the election process — which social media will inevitably amplify — and issues that would actually cast doubt on the legitimacy of the election:

All elections have flaws. And in today’s environment of mistrust, it’s easy for politicians to exploit those flaws to cast doubt on the whole result. When problems inevitably arise this fall — and when the two sides inevitably raise objections — then the loser, the loser’s party and the American people need to be prepared to know whether there truly is cause for some kind of recount or “redo,” or whether to accept the electoral verdict and move on. What should we look for?…

No one likes to lose, especially not when the stakes are perceived to be so high. But in any election, only one side can win. America already fought a Civil War because the losing side in the 1860 election was unwilling to accept defeat. One of the Union’s central reasons for fighting that war, as Abraham Lincoln reminded the nation at Gettysburg, was that the project of self-government declared in 1776 could not “endure” if the losing side in an election simply can walk away when it does not like the election’s outcome.

This year, the same proposition could be tested again. If either side cannot abide the other’s victory, self-government — government of, by and for the people — may perish here, if not elsewhere. For self-government to work, it is essential to be able to say when all the available evidence shows that “a lack of votes, not a theft of votes” is what caused the losing side’s defeat.
·
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Fact-check: Trump White House promotes misleading expectations for election night results”<https://electionlawblog.org/?p=115066>
Posted on September 12, 2020 1:17 pm<https://electionlawblog.org/?p=115066> by Rick Hasen<https://electionlawblog.org/?author=3>

Marshall Cohen<https://www.cnn.com/2020/09/12/politics/mcenany-trump-election-night-results/index.html> for CNN:

While election officials across the country try to prepare Americans for the chance of a prolonged vote-counting process this year, President Donald Trump and his allies have drawn a line in the sand and say they want to see a winner declared on election night.

As a result, Trump and his allies are setting unrealistic expectations, and undermining warnings from bipartisan state and local election officials and experts that a slower vote-count doesn’t always indicate a problem.Relying on an inaccurate and misleading interpretation of how US elections are conducted, White House press secretary Kayleigh McEnany said last Wednesday that the Trump administration wants to see a presidential winner projected on election night <https://www.cnn.com/2020/09/10/politics/2020-election-night-results-kayleigh-mcenany/index.html> this November.

“What we want election night to look like is a system that’s fair, a situation where we know who the President of the United States is on election night. That’s how the system is supposed to work. And that’s ultimately what we’re looking for and what we’re hoping for,” McEnany said in a Fox News interview<https://video.foxnews.com/v/6189119243001>, where she criticized Democrats for expanding access to mail-in voting.

In recent months, Trump has repeatedly questioned the legitimacy of the election, refused to say if he’ll accept the results and spread false information and conspiracy theories about mail-in voting. He has a long history of rejecting election results <https://www.cnn.com/2020/07/20/politics/disputed-election-crisis-trump/index.html> and levying baseless accusations of widespread fraud when he sees election results that he doesn’t like.

He and his team have also attempted to suggest that any delay in the announcement of results is somehow improper, and that, despite Covid, 2020 Election Night should look and feel like any other election — even though the pandemic has drastically transformed how people vote and how states count those ballots. McEnany’s implication that a clear winner be determined on Election Night is rules- or law-based is part of that effort, one that experts say is not grounded in any reality.

“There is no legal requirement that states announce the winner of their popular vote on election night,” said Franita Tolson, a CNN contributor and law professor at the University of Southern California, who pointed out that the legal framework <https://ballotpedia.org/Election_results_certification_dates,_2020> to formally select the next president largely revolves around Electoral College proceedings that take place in December and January.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Are Republicans Financing the Effort to Get the Green Party Restored to the Ballot in Wisconsin?<https://electionlawblog.org/?p=115064>
Posted on September 12, 2020 1:06 pm<https://electionlawblog.org/?p=115064> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/wisconsin-ballot-green-party/2020/09/11/797aa4d2-f44a-11ea-bc45-e5d48ab44b9f_story.html>

Hawkins suggested in an interview that Trump supporters had helped the Green Party ticket with its legal claim before the state Supreme Court. The party’s petition was filed by attorneys from the Milwaukee-based von Briesen & Roper law firm, which has a history of representing Wisconsin Republicans.

“You get help where you can find it,” Hawkins told The Washington Post when asked whether Republicans had financed the legal action. “They have their reasons and we have ours.”

Hawkins’s campaign manager, Andrea Merida, later denied that, saying she “literally used Google” to find a law firm because others had turned her down. She said she doesn’t know the partisan affiliation of donors from Wisconsin supporting the Green Party ticket.

A von Briesen lawyer listed on the court filing, Andrew Phillips, did not respond to a request for comment. The chairman of the Republican Party of Wisconsin, Andrew Hitt, denied any involvement in the effort. A spokesman for the Republican National Committee declined to comment.
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Posted in ballot access<https://electionlawblog.org/?cat=46>


“Roger Stone calls for Trump to seize total power if he loses the election”<https://electionlawblog.org/?p=115061>
Posted on September 12, 2020 12:59 pm<https://electionlawblog.org/?p=115061> by Rick Hasen<https://electionlawblog.org/?author=3>

Media Matters reports<https://www.mediamatters.org/roger-stone/roger-stone-calls-trump-seize-total-power-if-he-loses-election>, with the subhed: “Stone also said federal authorities should seize all Nevada ballots, federal agents and GOP state officials should ‘physically’ block voting, that Trump should nationalize police forces, and that Trump should order widespread arrests.”

Stone argued that “the ballots in Nevada on election night should be seized by federal marshalls and taken from the state” because “they are completely corrupted” and falsely said that “we can prove voter fraud in the absentees right now.” He specifically called for Trump to have absentee ballots seized in Clark County, Nevada, an area that leans<https://www.politico.com/2016-election/results/map/president/nevada/> Democratic. Stone went on to claim that “the votes from Nevada should not be counted; they are already flooded with illegals” and baselessly suggested that former Sen. Harry Reid (D-NV) should be arrested and that Trump should consider nationalizing Nevada’s state police force.

Beyond Nevada, Stone recommended that Trump consider several actions to retain his power. Stone recommended that Trump appoint former Rep. Bob Barr (R-GA) as a special counsel “with the specific task of forming an Election Day operation using the FBI, federal marshals, and Republican state officials across the country to be prepared to file legal objections and if necessary to physically stand in the way of criminal activity.”

Stone also urged Trump to consider declaring “martial law” or invoking the Insurrection Act<https://www.nytimes.com/article/insurrection-act.html> and then using his powers to arrest Facebook CEO Mark Zuckerberg, Apple CEO Tim Cook, “the Clintons” and “anybody else who can be proven to be involved in illegal activity.”
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“‘A huge risk’: Trump’s allies can’t sway him on mail-in voting”<https://electionlawblog.org/?p=115059>
Posted on September 12, 2020 12:53 pm<https://electionlawblog.org/?p=115059> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/news/2020/09/12/trump-mail-in-voting-411608>:

For a few weeks, Donald Trump’s advisers had seemingly gotten through to him — the president was finally encouraging his supporters to vote by mail, at least some of the time.

On-message Trump didn’t last long. He recently appeared<https://www.politico.com/news/2020/09/02/trump-vote-twice-voter-fraud-408007> to suggest people vote twice — voting in-person as a way to determine if their mail-in ballot had been counted — later warning Democrats would be “thieving and stealing and robbing” their way to an election win. Now, five Republicans close to the president’s campaign say that if Trump keeps up his vacillating mail-in voting rhetoric, they fear infrequent voters, especially older ones, will simply sit out the election.

In an election where a record number of Americans are expected to cast ballots by mail, that could cost Trump a victory.

“He should be encouraging people to do it, if that makes them feel more comfortable,” said Karl Rove, a veteran Republican strategist who has been informally advising Trump’s campaign.

Unlike the president, Trump’s own campaign has spent weeks urging supporters in 17 targeted states to mail in their ballots, making pleas through a dedicated website, Facebook ads and robocalls<https://www.politico.com/news/2020/08/26/donald-trump-jr-vote-mail-robocall-402503> narrated by the president’s son, Donald Trump Jr.

“If you’re Donald Trump, you need every vote you can get, no matter how you can get it,” said Scott Jennings, who worked under President George W. Bush and is close to the Trump White House. “We’re in a close race. The president needs to tell their supporters to vote any way they can — and as soon as possible.”
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Colorado sues USPS over pre-election mailers that contain incorrect voting information”<https://electionlawblog.org/?p=115057>
Posted on September 12, 2020 12:51 pm<https://electionlawblog.org/?p=115057> by Rick Hasen<https://electionlawblog.org/?author=3>

Denver Post:<https://www.denverpost.com/2020/09/12/jena-griswold-usps-lawsuit-election-misinformation/>

Colorado’s top election official Saturday filed a federal lawsuit against the United States Postal Service over mailers that contain incorrect election information for state voters.

Jena Griswold, Colorado’s secretary of state, said that her office learned Thursday that the postal service would be sending out pre-election mailers to every household in America — but that the information on the cards does not align with state election rules.

“This attempt at voter suppression violates the United States Constitution and federal statutes and must be stopped immediately,” Griswold and state Attorney General Phil Weiser alleged in the complaint filed in U.S. District Court in Denver.

Griswold also filed a motion for a temporary restraining order, seeking to block the postal service from sending the mailers.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Voting by mail in NJ 2020”<https://electionlawblog.org/?p=115055>
Posted on September 12, 2020 12:45 pm<https://electionlawblog.org/?p=115055> by Rick Hasen<https://electionlawblog.org/?author=3>

Andrew Appel is guardedly optimistic.<https://freedom-to-tinker.com/2020/09/12/voting-by-mail-in-nj-2020/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“A Texas federal court decision is the latest hit to voting rights in America”<https://electionlawblog.org/?p=115053>
Posted on September 12, 2020 12:43 pm<https://electionlawblog.org/?p=115053> by Rick Hasen<https://electionlawblog.org/?author=3>

Josh Douglas<https://www.cnn.com/2020/09/12/opinions/voting-rights-texas-26th-amendment-election-douglas/index.html> for CNN Opinion.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“The Electoral Count Act & The Process of Electing a President”<https://electionlawblog.org/?p=115051>
Posted on September 12, 2020 12:36 pm<https://electionlawblog.org/?p=115051> by Rick Hasen<https://electionlawblog.org/?author=3>

The National Task Force on Election Crises has issued this analysis<https://static1.squarespace.com/static/5e70e52c7c72720ed714313f/t/5f59223d94b21d2ebe8e6957/1599676990875/Electoral+Count+Act.pdf>.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, electoral college<https://electionlawblog.org/?cat=44>


WSJ Supports Permitting Election Officials To Start Processing Absentees Before Election Day<https://electionlawblog.org/?p=115049>
Posted on September 12, 2020 7:44 am<https://electionlawblog.org/?p=115049> by Richard Pildes<https://electionlawblog.org/?author=7>

The WSJ editorial page<https://www.wsj.com/articles/mail-vote-madness-in-pennsylvania-11599865002?mod=opinion_lead_pos1> offers another strong endorsement of changing laws in states like PA, MI, and WI to permit election officials to begin processing absentees earlier than Election Day. I strongly agree on that point, without necessarily agreeing with everything else in the editorial. This is an easy change to make, it should be uncontroversial, and it would help ensure we know the winner of the vote in those states earlier than later.

In PA, the legislature appears willing to permit the process to start three days before Election Day. The Governor wants to make it three weeks. Of course, this issue is for now wrapped up with other political fights over voting in PA. If this critical issue were dealt with on its own, it seems clear a compromise of some sort would be reached.

Here is an excerpt from the WSJ on this issue:

The tragedy would be for Republicans to pass a bill, Mr. Wolf to veto it, and Pennsylvania to barrel toward a foreseeable crash. Maybe three days of pre-processing is too little, given the busyness of Nov. 1 and 2. Maybe three weeks is too much. Mr. Wolf’s office didn’t reply Thursday to a query on the potential for compromise. “We continue to be open to negotiations,” says a spokeswoman for Senate Majority Leader Jake Corman, “and hope that the Governor would meet with Republican legislative leaders.”

The same should be happening beyond Harrisburg. About a dozen states<https://www.ncsl.org/research/elections-and-campaigns/vopp-table-16-when-absentee-mail-ballot-processing-and-counting-can-begin.aspx>, including Wisconsin and Michigan, don’t process ballots until Election Day. …
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The Winter of Our Discontent: Projecting the 78 harrowing days after the election”<https://electionlawblog.org/?p=115047>
Posted on September 11, 2020 3:38 pm<https://electionlawblog.org/?p=115047> by Rick Hasen<https://electionlawblog.org/?author=3>

David Dayen for TAP<https://prospect.org/api/amp/politics/winter-of-our-discontent-trump-2020-election/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Fact-checking William Barr: Is your vote no longer secret with mail-in ballots?”<https://electionlawblog.org/?p=115043>
Posted on September 11, 2020 3:33 pm<https://electionlawblog.org/?p=115043> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN<https://www.cnn.com/2020/09/11/politics/barr-secret-vote-fact-check/index.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+rss%2Fcnn_allpolitics+%28RSS%3A+CNN+-+Politics%29>:

Attorney General William Barr has become one of the staunchest supporters of the President’s campaign against mail-in voting. Speaking in Phoenix on Thursday, Barr continued to push false and negative narratives about mail-in voting.

“There’s no more secret vote, there’s no secret vote,” Barr said<https://www.pbs.org/newshour/nation/u-s-attorney-general-barr-attacks-voting-by-mail-while-in-arizona>. “Your name is associated with a particular ballot. The government and the people involved can find out and know how you voted. And it opens up the door to coercion.”

Rick Hasen, a University of California-Irvine, professor and one of the nation’s top experts in election law, told CNN, “There is no validity to this claim and it shows once again that either AG Barr has not done even a rudimentary amount of research into how mail-in balloting actually works or he’s deliberately obfuscating.”

Of Barr’s claim that “governments and the people involved” can find out how someone voted, Charles Stewart, a political science professor at MIT, said “that’s just incorrect, if people follow the law.”
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Texas Court Denies State’s Attempt to Stop Harris County from Sending Mail Ballot Applications to All Voters”<https://electionlawblog.org/?p=115041>
Posted on September 11, 2020 2:24 pm<https://electionlawblog.org/?p=115041> by Rick Hasen<https://electionlawblog.org/?author=3>

Brennan Center release<https://www.brennancenter.org/our-work/analysis-opinion/texas-court-denies-states-attempt-stop-harris-county-sending-mail-ballot>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Breaking: Ohio State Court Orders Election Officials to Accept Faxed or Emailed Applications to Vote Absentee<https://electionlawblog.org/?p=115038>
Posted on September 11, 2020 2:20 pm<https://electionlawblog.org/?p=115038> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the decision here<https://electionlawblog.org/wp-content/uploads/ohio-absentee.pdf>.
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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
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