[EL] ELB News and Commentary 4/6/21

Tue Apr 6 08:15:24 PDT 2021

Must-Read Nate Cohn: “Georgia’s New Law, and the Risk of Election Subversion”<https://electionlawblog.org/?p=121512>
Posted on April 6, 2021 7:56 am<https://electionlawblog.org/?p=121512> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT Upshot<https://www.nytimes.com/2021/04/06/upshot/georgia-election-law-risk.html> column:

What would have happened if the Georgia secretary of state, Brad Raffensperger, had responded, “OK, I’ll try,” in a January phone call after President Trump asked him to “find” 11,000 votes?

No one can be sure. What is clear is that the question has been overlooked in recent months. Public attention has mostly<https://www.nytimes.com/2021/02/10/us/politics/trump-georgia-investigation.html> moved on from Mr. Trump’s bid to overturn the election; activists and politicians are focused more on whether to restrict or expand voting access, particularly by mail.

But trying to reverse an election result without credible evidence of widespread fraud is an act of a different magnitude than narrowing access. A successful effort to subvert an election would pose grave and fundamental risks to democracy, risking political violence and secessionism.

Beyond any provisions on voting itself, the new Georgia election law risks making election subversion easier. It creates new avenues for partisan interference in election administration. This includes allowing the state elections board, now newly controlled by appointees of the Republican State Legislature, to appoint a single person to take control of typically bipartisan county election boards, which have important power over vote counting and voter eligibility.

The law also gives the Legislature the authority to appoint the chair of the state election board and two more of its five voting members, allowing it to appoint a majority of the board. It strips the secretary of state of the chair and a vote.

Even without this law, there would still be a risk of election subversion: Election officials and administrators all over the country possess important powers, including certification of election results, that could be abused in pursuit of partisan gain. And it’s a risk that H.R. 1, the reform bill congressional Democrats are pushing, does relatively little to address.

This is an urgent topic that is analytically distinct from the voter suppression concerns with the Georgia law. Although Nate links here to my recent WaPo column<https://www.washingtonpost.com/outlook/2021/03/16/hr-1-voting-reforms/> on what to include in H.R. 1, and suggests that it is missing a requirement of “nonpartisan election administration,” I’m not sure that would be so easy for Congress to write in terms of the structure that would apply, and it would be much harder to implement than for the one time act of drawing legislative districts.

But I have written about this question in my book, Election Meltdown<https://www.amazon.com/Election-Meltdown-Distrust-American-Democracy/dp/0300248199/ref=sr_1_1?keywords=hasen+election+meltdown&qid=1565015345&s=digital-text&sr=1-1-catcorr>, and some other recent pieces of mine discuss this question of election subversion and what to do about it:

We Can’t Let Our Elections Be This Vulnerable Again <https://www.theatlantic.com/ideas/archive/2021/01/we-cant-let-our-elections-be-vulnerable-again/617542/> (The Atlantic) (suggesting changes to the rules for counting and certifying electoral college votes)

Donald Trump Should Be Prosecuted for His Shakedown of Georgia’s Brad Raffensperger<https://slate.com/news-and-politics/2021/01/donald-trump-should-be-prosecuted-georgia-brad-raffensperger.html> (Slate)

The Only Way to Save American Democracy Now<https://slate.com/news-and-politics/2021/01/biden-pelosi-schumer-john-lewis-save-democracy.html> (Slate)

Election law can’t protect democracy if our representatives are lawless<https://www.latimes.com/opinion/story/2021-01-20/election-2020-election-lawlessness> (LA Times)

And much more about this coming in my other writings, including my forthcoming “Cheap Speech” book
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Posted in cheap speech<https://electionlawblog.org/?cat=130>, Election Meltdown<https://electionlawblog.org/?cat=127>

I Was on “All in With Chris Hayes” Talking About Trump’s Deceptive Fundraising Practices<https://electionlawblog.org/?p=121509>
Posted on April 6, 2021 6:54 am<https://electionlawblog.org/?p=121509> by Rick Hasen<https://electionlawblog.org/?author=3>

You can watch here<https://www.nbc.com/all-in-with-chris-hayes/video/all-in-4521/4329229> (with registration, about 18 minutes into the show), or read the transcript<https://www.msnbc.com/transcripts/transcript-all-chris-hayes-4-5-21-n1263125>.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>

“How Do Campaign Spending Limits Affect Elections? Evidence from the United Kingdom 1885–2019”<https://electionlawblog.org/?p=121507>
Posted on April 6, 2021 6:42 am<https://electionlawblog.org/?p=121507> by Rick Hasen<https://electionlawblog.org/?author=3>

Alexander Fouinaies in APSR<https://www.cambridge.org/core/journals/american-political-science-review/article/how-do-campaign-spending-limits-affect-elections-evidence-from-the-united-kingdom-18852019/F9C22FCE32E56164969D1E01347D28D6>. Abstract:

In more than half of the democratic countries in the world, candidates face legal constraints on how much money they can spend on their electoral campaigns, yet we know little about the consequences of these restrictions. I study how spending limits affect UK House of Commons elections. I contribute new data on the more than 70,000 candidates who ran for a parliamentary seat from 1885 to 2019, and I document how much money each candidate spent, how they allocated their resources across different spending categories, and the spending limit they faced. To identify the effect on elections, I exploit variation in spending caps induced by reforms of the spending-limit formula that affected some but not all constituencies. The results indicate that when the level of permitted spending is increased, the cost of electoral campaigns increases, which is primarily driven by expenses related to advertisement and mainly to the disadvantage of Labour candidates; the pool of candidates shrinks and elections become less competitive; and the financial and electoral advantages enjoyed by incumbents are amplified.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>

“If It’s Not Jim Crow, What Is It?”<https://electionlawblog.org/?p=121505>
Posted on April 6, 2021 6:40 am<https://electionlawblog.org/?p=121505> by Rick Hasen<https://electionlawblog.org/?author=3>

Jamelle Bouie NYT column<https://www.nytimes.com/2021/04/06/opinion/georgia-voting-law.html?campaign_id=9&emc=edit_nn_20210406&instance_id=28904&nl=the-morning&regi_id=117282&segment_id=54956&te=1&user_id=73afc232b34fb48763946ae71c55eb73>:

The laws that disenfranchised Black Americans in the South and established Jim Crow did not actually say they were disenfranchising Black Americans and creating a one-party racist state.

I raise this because of a debate among politicians and partisans on whether Georgia’s new election law — rushed through<https://www.courthousenews.com/voting-rights-groups-angered-over-georgia-lawmakers-rush-on-new-voting-bill/> last month by the state’s Republican legislature and signed by Gov. Brian Kemp, a Republican — is a throwback to the Jim Crow restrictions of the 20th century.

Democrats say yes. “This is Jim Crow in the 21st century. It must end,” President Biden said in a statement<https://www.cnn.com/2021/03/26/politics/joe-biden-georgia-voting-rights-bill/index.html>. Republicans and conservative media personalities say no. “You know what voter suppression is?” Ben Shapiro<https://twitter.com/jasonscampbell/status/1377311302750724103?s=21> said on his very popular podcast. “Voter suppression is when you don’t get to vote.”

The problem with the “no” argument here is that it mistakes both the nature and the operation of Jim Crow voting laws. There was no statute that said, “Black people cannot vote.” Instead, Southern lawmakers spun a web of restrictions and regulations meant to catch most Blacks (as well as many whites) and keep them out of the electorate. It is true that the “yes” argument of President Biden and other Democrats overstates similarities and greatly understates key differences — chief among them the violence that undergirded the Jim Crow racial order. But the “no” argument of conservatives and Republicans asks us to ignore context and extend good faith to lawmakers who overhauled their state’s election laws because their party lost an election.

Southern lawmakers at the turn of the 20th century weren’t shy about their motives — “Whenever there were political questions involved, of course, we looked to the interests of the party, because they are the interests of the State,” one Democratic delegate to the 1898 Louisiana constitutional convention, which sharply restricted the franchise, said at the time — but their laws had to be more circumspect. “Those who sought to prune the Southern electorate were hampered by various constitutional restrictions,” the historian J. Morgan Kousser explained in his 1974 book, “The Shaping of Southern Politics<https://authors.library.caltech.edu/104503/>: Suffrage Restriction and the Establishment of the One-Party South, 1880-1910.”

Between the Fifteenth Amendment, which prohibited overt discrimination on the basis of “race, color, or previous condition of servitude” and the Fourteenth Amendment, which allowed Congress to slash the representation of states that disenfranchised adult males for any reason other than crime or rebellion, Southern lawmakers could not just write Black voters out of the electorate. “The disenfranchisers were forced to contrive devious means to accomplish their purposes,” Kousser writes.

According to Kousser, the first wave of suffrage restriction after Reconstruction relied primarily on laws and practices that “decreased the influence of opposition voters but did not actually prohibit them from exercising the franchise.” Some states, for example, took the right to name their local officials away from voters and granted it to governors and state legislatures, a practice that “guaranteed that white Democrats would rule even in Republican areas.”…
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>

“Half of Republicans believe false accounts of deadly U.S. Capitol riot-Reuters/Ipsos poll”<https://electionlawblog.org/?p=121503>
Posted on April 6, 2021 6:36 am<https://electionlawblog.org/?p=121503> by Rick Hasen<https://electionlawblog.org/?author=3>

Reuters<https://www.reuters.com/article/us-usa-politics-disinformation/half-of-republicans-believe-false-accounts-of-deadly-u-s-capitol-riot-reuters-ipsos-poll-idUSKBN2BS0RZ>:

Three months after a mob of Trump supporters stormed the Capitol to try to overturn his November election loss, about half of Republicans believe the siege was largely a non-violent protest or was the handiwork of left-wing activists “trying to make Trump look bad,” a new Reuters/Ipsos poll has found.

Six in 10 Republicans also believe the false claim put out by Trump that November’s presidential election “was stolen” from him due to widespread voter fraud, and the same proportion of Republicans think he should run again in 2024, the March 30-31 poll showed.

Since the Capitol attack, Trump, many of his allies within the Republican Party and right-wing media personalities have publicly painted a picture of the day’s events jarringly at odds with reality.

Hundreds of Trump’s supporters, mobilized by the former president’s false claims of a stolen election, climbed walls of the Capitol building and smashed windows to gain entry while lawmakers were inside voting to certify President Joe Biden’s election victory. The rioters – many of them sporting Trump campaign gear and waving flags – also included known white supremacist groups such as the Proud Boys.

In a recent interview with Fox News, Trump said the rioters posed “zero threat.” Other prominent Republicans, such as Senator Ron Johnson of Wisconsin, have publicly doubted whether Trump supporters were behind the riot.
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Posted in chicanery<https://electionlawblog.org/?cat=12>

“In a Pennsylvania town, a Facebook group fills the local news void”<https://electionlawblog.org/?p=121501>
Posted on April 6, 2021 6:34 am<https://electionlawblog.org/?p=121501> by Rick Hasen<https://electionlawblog.org/?author=3>

NBC News:<https://www.nbcnews.com/tech/social-media/pennsylvania-town-facebook-group-fills-local-news-void-rcna577>

Lawmakers and experts have been critical of Facebook’s groups feature, claiming the mostly private spaces have become hubs for coronavirus misinformation and extremism.

But The News Alerts of Beaver County isn’t home base for a gun-wielding militia, and it isn’t a QAnon fever swamp. In fact, the group’s focus on timely and relevant information for a small real-world community is probably the kind that Chief Executive Mark Zuckerberg envisioned when he pivoted his company toward communities in 2017.

And yet, the kind of misinformation that’s traded in The News Alerts of Beaver County and thousands of other groups just like it poses a unique danger. It’s subtler and in some ways more insidious, because it’s more likely to be trusted. The misinformation — shared in good faith by neighbors, sandwiched between legitimate local happenings and overseen by a community member with no training but good intentions — is still capable of tearing a community apart.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>

“Republicans ramp up attacks on corporations over Georgia voting law, threaten ‘consequences’”<https://electionlawblog.org/?p=121499>
Posted on April 5, 2021 7:18 pm<https://electionlawblog.org/?p=121499> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/georgia-voting-mlb-trump-mcconnell/2021/04/05/5aa65090-9622-11eb-962b-78c1d8228819_story.html?utm_source=twitter&utm_medium=social&utm_campaign=wp_politics>:

Republicans are attacking corporations over their decision to condemn the controversial Georgia voting law, part of the party’s embrace of the populism espoused by President Donald Trump even as it creates tensions with traditional allies in the business community.

Senate Minority Leader Mitch McConnell (R-Ky.) on Monday accused corporations of siding<https://www.washingtonpost.com/business/2021/03/31/georgia-voting-law-companies/?itid=lk_inline_manual_3> with Democrats’ portrayal of the law<https://www.washingtonpost.com/politics/republicans-election-control/2021/03/26/064fffcc-8cb4-11eb-a730-1b4ed9656258_story.html?itid=lk_inline_manual_3> as the new Jim Crow, which he called an attempt to “mislead and bully the American people.” He argued that it would expand, not restrict, voter access to the polls and his statement included a threat of unspecified “serious consequences” if companies continued to take sides opposite Republicans on a variety of issues.

“From election law to environmentalism to radical social agendas to the Second Amendment, parts of the private sector keep dabbling in behaving like a woke parallel government,” McConnell said in his statement<https://www.mcconnell.senate.gov/public/index.cfm/pressreleases?ID=54AB06DF-4E02-4991-BC94-6D980FE85925>. “Corporations will invite serious consequences if they become a vehicle for far-left mobs to hijack our country from outside the constitutional order.”

Sen. Marco Rubio (R-Fla.) made similar remarks in questioning why Republicans should listen to companies on policy issues after they embrace positions at odds with the party.

“Why are we still listening to these woke corporate hypocrites on taxes, regulations & antitrust?” he tweeted Friday.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Corporations gave over $50M to voting restriction backers”<https://electionlawblog.org/?p=121497>
Posted on April 5, 2021 3:59 pm<https://electionlawblog.org/?p=121497> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://apnews.com/article/corporations-gave-over-50-million-vote-registration-backers-1ef1f1981b82e8918cc4c8bda0fff1b0>

 When executives from Coca-Cola and Delta Air Lines spoke out<https://apnews.com/article/mlb-legislature-boycotts-voting-rights-elections-adaa1758fb58df19a12cd05c453840b0> against Georgia’s new voting law as unduly restrictive last week, it seemed to signal a new activism springing from corporate America.

But if leaders of the nation’s most prominent companies are going to reject lawmakers who support restrictive voting measures, they will have to abruptly reverse course.

State legislators across the country who have pushed for new voting restrictions, and also seized on former President Donald Trump’s baseless claims of election fraud, have reaped more than $50 million in corporate donations in recent years, according to a new report by Public Citizen<https://mkus3lurbh3lbztg254fzode-wpengine.netdna-ssl.com/wp-content/uploads/The-Corporate-Sponsors-of-Voter-Suppression.pdf>, a Washington-based government watchdog group.

Telecom giant AT&T was the most prolific, donating over $800,000 since 2015 to authors of proposed restrictions, cosponsors of such measures, or those who voted in favor of the bills, the report found. Other top donors during the same period include Comcast, Philip Morris USA, UnitedHealth Group, Walmart, Verizon, General Motors and Pfizer.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Inside Corporate America’s Frantic Response to the Georgia Voting Law”<https://electionlawblog.org/?p=121495>
Posted on April 5, 2021 3:57 pm<https://electionlawblog.org/?p=121495> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/04/05/business/voting-rights-ceos.html?action=click&module=Spotlight&pgtype=Homepage>

After Mr. Trump’s equivocating response to the white nationalist violence in Charlottesville, Va., in 2017, Ken Frazier, the Black chief executive of Merck, resigned<https://www.nytimes.com/2017/08/14/business/dealbook/merck-trump-charlottesville-ceos.html> from a presidential advisory group, prompting dozens of other top executives to distance themselves from the president. Last year, after the killing of George Floyd, hundreds of companies expressed solidarity with the Black Lives Matter movement.

But for corporations, the dispute over voting rights is different. An issue that both political parties see as a priority is not easily addressed with statements of solidarity and donations. Taking a stand on voting rights legislation thrusts companies into partisan politics and pits them against Republicans who have proven willing to raise taxes and enact onerous regulations on companies that cross them politically.

It is a head-spinning new landscape for big companies, which are trying to appease Democrats focused on social justice, as well as populist Republicans who are suddenly unafraid to break ties with business. Companies like Delta are caught in the middle, and face steep political consequences no matter what they do.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Conservatives try to commandeer ‘the big lie’”<https://electionlawblog.org/?p=121493>
Posted on April 5, 2021 3:51 pm<https://electionlawblog.org/?p=121493> by Rick Hasen<https://electionlawblog.org/?author=3>

Aaron Blake<https://www.washingtonpost.com/politics/2021/04/05/conservatives-try-commandeer-big-lie/>:

In the weeks after the 2016 election, we were all trying to explain how Donald Trump had, somehow, narrowly won the presidency. And one phrase that had cropped up just before the election was suddenly on the lips of many analysts: “fake news<https://www.bbc.com/news/blogs-trending-42724320>.” Deliberate election disinformation from dubious websites had infected such social media platforms as Facebook, leading many people to believe utterly false things like that the pope had endorsed Trump or that Hillary Clinton had sold weapons to the Islamic State militant group. Some studies even suggested it might have swung the election<https://www.washingtonpost.com/news/the-fix/wp/2018/04/03/a-new-study-suggests-fake-news-might-have-won-donald-trump-the-2016-election/?itid=lk_inline_manual_2>.

Given that last narrative, Trump and his supporters quickly sprung into action. They commandeered the term, twisting it to refer to something else entirely. Suddenly, it was used to describe media reports and media figures with whom they disagreed. Thanks to Trump’s knack for branding and repetition, this latter meaning became more pervasive. A pithy phrase used to describe a legitimate media phenomenon that risked undermining Trump suddenly became an even pithier political cudgel for him to use against his foes.

Today, a similar effort is afoot to re-purpose another phrase that has become a liability for Trump’s party: the “big lie.”

The decisions by Major League Baseball, Coca-Cola and Delta Air Lines to push back on Georgia’s new voting law<https://www.washingtonpost.com/sports/2021/04/02/mlb-move-all-star-game-atlanta-voting-law/?itid=lk_inline_manual_8> has united much of the conservative movement — Trump supporters and critics alike — against them. The right has accused the left and the media of overstating the suppressive elements of Georgia’s law and these corporations of swallowing the claims whole.

It has been rightly noted that such laws and their more extreme variants are predicated, in many ways, on Trump’s “big lie” of a supposedly stolen election<https://www.washingtonpost.com/politics/2021/02/12/trumps-big-lie-was-bigger-than-just-stolen-election/?itid=lk_inline_manual_9>. GOP legislators have justified such efforts by saying that they are needed to address even the perception of problems, regardless of nonexistent evidence of the widespread voter fraud that Trump claimed.

Conservatives, though, are appropriating that phrase not to describe the predicate for laws like Georgia’s, but rather the pushback against it.

Senate Minority Leader Mitch McConnell (R-Ky.) used the phrase twice in a statement Monday<https://www.republicanleader.senate.gov/newsroom/press-releases/mcconnell-corporations-shouldnt-fall-for-absurd-disinformation-on-voting-laws> accusing the corporations of falling victim to a disinformation campaign.

“All the facts disprove the big lie,” McConnell said, referring to polls showing strong support for the kind of voter ID requirements that Georgia will apply to absentee ballots, as well as Washington Post fact-checks of President Biden’s false claims<https://www.washingtonpost.com/politics/2021/04/02/president-biden-recidivist/?itid=lk_inline_manual_14> about the law’s effect on Georgia’s early-vote poll closing times.

McConnell added that “a host of powerful people and institutions apparently think they stand to benefit from parroting this big lie.”

McConnell’s statement follows on a Wall Street Journal column titled “Corporate America’s ‘Big Lie’<https://www.wsj.com/articles/corporate-americas-big-lie-11617315583?reflink=desktopwebshare_twitter> ” that also focused on the voter ID elements of the law. Another well-trafficked column, from the Hill newspaper on Monday, attacked the MLB for pushing “Biden’s big lie about ‘suppressed’ GA voting.”<https://thehill.com/opinion/civil-rights/546355-gutless-mlb-pushes-bidens-big-lie-on-suppressed-ga-voting-by-moving-all> Former House speaker Newt Gingrich said Sunday that Democrats were “engaged in big lie smear against Georgia<https://twitter.com/newtgingrich/status/1378691086600839169>.” Other conservatives have used the phrase<https://twitter.com/baseballcrank/status/1378102307351621639>, as well.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

I Was on the Dan Abrams Podcast Talking About the New Georgia Voting Law<https://electionlawblog.org/?p=121491>
Posted on April 5, 2021 3:46 pm<https://electionlawblog.org/?p=121491> by Rick Hasen<https://electionlawblog.org/?author=3>

Watch or listen here<https://lawandcrime.com/the-dan-abrams-podcast/this-week-on-the-dan-abrams-podcast-rick-hasen/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Trump argues that his fund-raising was ‘done legally,’ in response to a Times investigation.”<https://electionlawblog.org/?p=121489>
Posted on April 5, 2021 3:45 pm<https://electionlawblog.org/?p=121489> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2021/04/05/us/politics/trump-fund-raising.html>
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>

“The time has come for nonpartisan state election leadership”<https://electionlawblog.org/?p=121487>
Posted on April 5, 2021 12:51 pm<https://electionlawblog.org/?p=121487> by Rick Hasen<https://electionlawblog.org/?author=3>

Larry Diamond, Kevin Johnson, and Miles Rapoport oped<https://thehill.com/opinion/campaign/546307-the-time-has-come-for-nonpartisan-state-election-leadership?rl=1>.
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Posted in election administration<https://electionlawblog.org/?cat=18>

“Why some Democrats are quietly unhappy with the House’s big voting rights bill”<https://electionlawblog.org/?p=121485>
Posted on April 5, 2021 12:43 pm<https://electionlawblog.org/?p=121485> by Rick Hasen<https://electionlawblog.org/?author=3>

Andrew Prokup <https://www.vox.com/22346812/voting-rights-bill-hr1-for-the-people-act> for Vox.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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http://electionlawblog.org<http://electionlawblog.org/>

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