[EL] ELB User Survey/ELB News and Commentary 4/15/21

Thu Apr 15 09:00:45 PDT 2021

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“How to Fix H.R. 1”<https://electionlawblog.org/?p=121660>
Posted on April 15, 2021 8:57 am<https://electionlawblog.org/?p=121660> by Rick Hasen<https://electionlawblog.org/?author=3>

Reihan Salam<https://www.theatlantic.com/ideas/archive/2021/04/better-election-reform-package/618592/> in the Atlantic:

As it stands, the For the People Act aims to encourage small donations to congressional campaigns by providing a sixfold federal-government match to donations of $200 or less. Congressional candidates who opt in to this program would be forced to accept a maximum donation level of $1,000, which is significantly lower than the current maximum of $2,900. The stated objective of the program is to dampen the influence of wealthy donors by reducing the size of the largest donations and multiplying the impact of small ones, making small-donor fundraising a more lucrative proposition

The small-donor matching program, inspired by a similar effort in New York City, sounds innocuous enough. As Richard Pildes of the NYU School of Law has observed<https://www.yalelawjournal.org/forum/small-donor-based-campaign-finance-reform-and-political-polarization>, however, there is an important difference between the two programs. While the New York City program matches only small donations made by city residents (and not those made by people living in Palm Beach, Florida, or Pittsburgh, Pennsylvania, no doubt to the disappointment of the national-fundraising phenom Andrew Yang<https://nypost.com/2021/03/16/yang-raises-2-1m-half-of-donations-coming-from-nyc-filings/>), the For the People Act does not limit matching funds to in-district contributions. Rather than mitigating the growing tendency of House candidates to rely on out-of-district donors over in-district donors, this provision will almost certainly increase it.

Given that congressional candidates already rely heavily on out-of-district donors, this aspect of the small-donor matching program might seem immaterial. But evidence shows that the rising influence of out-of-district donors has already led House members to be less responsive to their own constituents. In a recent article<https://onlinelibrary.wiley.com/doi/abs/10.1111/lsq.12336> in Legislative Studies Quarterly, the political scientists Brandice Canes-Wrone and Kenneth M. Miller report that “when the national donor base prefers a different outcome than a representative’s general and primary electorates, overwhelmingly the member chooses the donor-favored position.” This could merely reflect the ideological proclivities of the members in question, whom you’d expect to be more in tune with their like-minded donors than a random assortment of their neighbors. But Canes-Wrone and Miller also found that “the higher the proportion of out-of-district donations a member has received in recent years, the more responsive they are to the preferences of the national donor class” and, relatedly, that “responsiveness to national donor opinion is higher the safer is the district.”
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Posted in campaign finance<https://electionlawblog.org/?cat=10>

“The future of political advertising is connected TV”<https://electionlawblog.org/?p=121658>
Posted on April 15, 2021 7:36 am<https://electionlawblog.org/?p=121658> by Rick Hasen<https://electionlawblog.org/?author=3>

Axios<https://www.axios.com/future-political-advertising-connected-tv-3f31db94-945e-47ef-b200-243b2b1a0f46.html?utm_source=newsletter&utm_medium=email&utm_campaign=newsletter_axiosam&stream=top>:

Political advertising has quickly begun to migrate over to connected TV (CTV), or digital and streaming television, according to new data.

Why it matters: “If the current trends of explosive growth in CTV viewership continue, we could see a tipping point where CTV makes up nearly half of political digital ad spend as soon as 2022,” says Grace Briscoe, vice president of candidates and causes at Centro, a digital ad placement firm that works with hundreds of campaigns across the country….

This is a huge departure from the decades-long practice of campaigns buying TV ads that are targeted to local demographic market areas without much precision other than age and gender.
·         As more political ads are bought on connected TVs, more messages will be targeted much more narrowly to people based on their interests, purchasing behavior, etc. — just as they are online.
·         Another big shift will be the way these ads are purchased. Unlike traditional TV ads, which are typically purchased ahead of time for a set price, Centro says more than 60% of CTV ads are purchased via programmatic real-time bidding on the ad inventory, which complicates transparency measures.
·         “Providing information on advertiser spend isn’t a simple matter when transactions have millions of data points per minute that are also constantly changing,” Briscoe says.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>, cheap speech<https://electionlawblog.org/?cat=130>

“New Sanctions On Manafort Deputy Suggest Deeper Role Of Russian Intel In 2016”<https://electionlawblog.org/?p=121656>
Posted on April 15, 2021 7:34 am<https://electionlawblog.org/?p=121656> by Rick Hasen<https://electionlawblog.org/?author=3>

TPM:<https://talkingpointsmemo.com/muckraker/new-sanctions-on-manafort-deputy-suggest-deeper-role-of-russian-intel-in-2016>

The Biden administration slapped Konstantin Kilimnik, an assistant of Paul Manafort and alleged Russian spy, with sanctions on Thursday as it escalated economic measures against Moscow.

In announcing the move, the Treasury Department suggested that Kilimnik gave internal Trump campaign polling data to Russian intelligence during the 2016 election.

“During the 2016 U.S. presidential election campaign, Kilimnik provided the Russian Intelligence Services with sensitive information on polling and campaign strategy,” the release reads.

That goes significantly further than any previous assessment of the fate of internal Trump campaign polling data that Paul Manafort notoriously shared with Kilimnik during the 2016 campaign. A report from the Senate Intelligence Committee released in August 2020 declined to draw a conclusion on what Kilimnik ultimately did with the polling data, but said that its own investigation was operating with limited information…
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Posted in chicanery<https://electionlawblog.org/?cat=12>

“GOPers Crack Down On The Private Election Grants That Helped Avoid A Pandemic Fiasco”<https://electionlawblog.org/?p=121654>
Posted on April 15, 2021 7:32 am<https://electionlawblog.org/?p=121654> by Rick Hasen<https://electionlawblog.org/?author=3>

Tierney Sneed for TPM<https://talkingpointsmemo.com/news/gopers-crack-down-on-the-private-election-grants-that-helped-avoid-a-pandemic-fiasco>:

As the global pandemic required election officials to drastically rethink how voting would work in 2020, philanthropic groups stepped up and contributed millions of dollars that paid for much of the changes needed to election infrastructure. Officials have since said that that money — particularly in light of how Congress struggled to provide enough federal election funding — helped them thwart a pandemic voting fiasco. The charity grants covered everything from election equipment to temp workers to personal protective gear, and some local election offices saw their 2020 budgets doubled<https://www.apmreports.org/story/2020/12/07/private-grant-money-chan-zuckerburg-election> by the private funding they received.

But going forward, that kind of private bailout for U.S. elections may not be an option for many places across the country, as several Republican-controlled states consider new restrictions on whether election officials can accept charity money in the future.

Already this year, Georgia and Arizona have made proposed limits on private election funding law, and lawmakers have put forward similar measures in at least 11 other states (though some of those bills have stalled out or face vetoes from Democratic governors). The backlash to the charity election grants are part of a wave of legislation propelled by President Trump’s lies about his 2020 defeat.

“I have no doubt that the concern stems from what happened in the 2020 election,” said Rick Hasen, a UC-Irvine law professor who runs the election law blog and has written several books about election administration. “Anything that helped that election run smoothly and effectively and cleanly is now the target for attack.”

It’s unclear what effect such bans will have on election administration going forward. The pandemic was a once-in-a-generation emergency that prompted dramatic changes in how Americans vote — stretching the already tight budgets of election offices across the country. All told, election administrators across the country accepted hundreds of millions of dollars in private funding, in what was reported to have been a mad dash t<https://www.nytimes.com/2020/09/25/us/politics/elections-private-grants-zuckerberg.html>o fill their budget holes last fall.

The grant programs allowed many election administrators put on what one expert at NYU’s Brennan Center described as their “dream” elections.<https://www.apmreports.org/story/2020/12/07/private-grant-money-chan-zuckerburg-election> About one in every five local offices accepted the philanthropic funding.

The Republican push to prohibit private election election comes after the charity grants occupied a piece of conspiracy theories floating around the 2020 election — fueled by President Trump and his allies’ ongoing beef with Mark Zuckerberg, the Facebook founder whose charity put up more than $400 million in grants for election administration last year.

Critics of the bills see not just a knee jerk reaction to the 2020 results, but a groundwork being laid to starve election administration coffers, which will in turn reduce voting opportunities — particularly for low-income and minority voters.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Very Sad News: Voting Rights Scholar Chandler Davidson Has Passed Away<https://electionlawblog.org/?p=121650>
Posted on April 14, 2021 1:31 pm<https://electionlawblog.org/?p=121650> by Rick Hasen<https://electionlawblog.org/?author=3>

Chandler Davidson<https://profiles.rice.edu/faculty/chandler-davidson>, a leading scholar of American voting rights, has passed away.

Here is a notice<http://news.rice.edu/2021/04/12/rice-remembers-chandler-davidson-founding-member-of-department-of-sociology/> from Rice University.

Gerry Hebert will be offering a remembrance that I will post when ready.

Condolences to his family and friends.
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Posted in election law biz<https://electionlawblog.org/?cat=51>

“Pro-Yang PACs take shape as New York mayor’s race enters prime time”<https://electionlawblog.org/?p=121647>
Posted on April 14, 2021 10:56 am<https://electionlawblog.org/?p=121647> by Richard Pildes<https://electionlawblog.org/?author=7>

It’s well-known that one of the issues to keep in mind about public-financing of elections in the United States — whether traditional forms of public financing or small-donor matching funds approaches to public financing — that there is still likely to be significant amounts spent by outside groups, including SuperPacs. Public financing does not and could not eliminate that, given that Buckley v. Valeo protects the right of independent spending. In competitive contests where a lot is perceived to be at stake, large amounts of independent spending will take place, despite the candidates receiving public financing. That is starting to happen with the NYC mayor’s race, as this Politico stor<https://www.politico.com/states/new-york/albany/story/2021/04/13/pro-yang-pacs-take-shape-as-the-mayors-race-enters-prime-time-1374287>y reports:

A top-tier political consultant is launching an effort to boost Andrew Yang’s candidacy with a goal of raising $6 million for TV ads — one of at least three political action committees in the works to propel the current front runner to City Hall.

Lis Smith, a senior adviser to Pete Buttigieg’s presidential campaign, is in talks with potential donors and staff about forming a PAC that would operate outside the city’s strict campaign finance limits to counter negative advertising against Yang, several people familiar with the calls told POLITICO.

She has partnered with Declaration Media, a national Democratic firm founded by a trio<https://www.politico.com/news/2021/02/22/declaration-media-democrats-advertising-470339> of veteran political operatives: Admaker AJ Lenar, who worked on Obama’s presidential campaign; Meredith Kelly, communications director for Kirsten Gillibrand’s White House bid; and Trey Nix, campaign manager for North Carolina Gov. Roy Cooper….

At least one PAC does not share warm feelings toward Yang: Our City, a group formed by Justice Democrats’ Gabe Tobias, is beginning to raise money to counter Yang’s rise in the polls<https://www.politico.com/states/new-york/city-hall/story/2021/04/12/left-leaning-pac-to-deploy-policy-poll-against-yang-1373427>.

“We want to make sure that a progressive candidate wins the mayoral race, and make sure that no voters go in voting for a conservative, nonprogressive candidate and that’s definitely Andrew Yang,” Tobias recently told POLITICO.

These groups are the latest to promise a limitless flood of cash into the race, and campaign finance laws prohibit the PACs from coordinating with the campaigns.

Food & Water Action, an environmental organization that endorsed Stringer in January<https://www.foodandwateraction.org/statements/food-water-action-endorses-scott-stringer-for-nyc-mayor/>, recently formed a PAC in support of his campaign.

An independent expenditure committee backing former Obama and Bloomberg official Shaun Donovan received $2 million<https://www.politico.com/states/new-york/city-hall/story/2021/04/03/pro-donovan-pac-set-to-inundate-mayoral-race-with-outside-cash-1371707> from the candidate’s father and earmarked even more than that, with a planned $3 million TV ad buy, according to data from AdImpact.

A PAC supporting Wall Street executive Ray McGuire has raised $4 million and booked more than $1.6 million in TV and radio spots.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Speaking Apr. 21 with Larry Diamond and Pam Fessler: “Can American Elections Be Fixed? What It Will Take to Strengthen U.S. Democracy”<https://electionlawblog.org/?p=121644>
Posted on April 14, 2021 7:18 am<https://electionlawblog.org/?p=121644> by Rick Hasen<https://electionlawblog.org/?author=3>

Looking forward to participating in another “America at a Crossroads” event. Registration required.<https://www.jewsunitedfordemocracy.org/event/larry-diamond-rick-hasen/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Hundreds of Companies Unite to Oppose Voting Limits, but Others Abstain”<https://electionlawblog.org/?p=121641>
Posted on April 14, 2021 7:13 am<https://electionlawblog.org/?p=121641> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/04/14/business/ceos-corporate-america-voting-rights.html?campaign_id=9&emc=edit_nn_20210414&instance_id=29210&nl=the-morning%C2%AEi_id=117282&segment_id=55537&te=1&user_id=73afc232b34fb48763946ae71c55eb73>

Amazon, BlackRock, Google, Warren Buffett and hundreds of other companies and executives signed on to a new statement released on Wednesday opposing “any discriminatory legislation” that would make it harder for people to vote.

It was the biggest show of solidarity so far by the business community as companies around the country try to navigate the partisan uproar over Republican efforts to enact new election rules in almost every state. Senior Republicans, including former President Donald J. Trump and Senator Mitch McConnell, have called for companies to stay out of politics.

The statement was organized in recent days by Kenneth Chenault, a former chief executive of American Express, and Kenneth Frazier, the chief executive of Merck. A copy appeared on Wednesday in advertisements in The New York Times and The Washington Post.

Last month, with only a few big companies voicing opposition to a restrictive new voting law in Georgia, Mr. Chenault and Mr. Frazier led a group of Black executives<https://www.nytimes.com/2021/03/31/business/voting-rights-georgia-corporations.html?searchResultPosition=6> in calling on companies to get more involved in opposing similar legislation<https://www.nytimes.com/2021/04/05/business/voting-rights-ceos.html?searchResultPosition=3> around the country.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“DeSantis wants voters’ signatures to match. Would his pass the test?”<https://electionlawblog.org/?p=121639>
Posted on April 13, 2021 8:30 pm<https://electionlawblog.org/?p=121639> by Rick Hasen<https://electionlawblog.org/?author=3>

Tampa Bay Times<https://www.tampabay.com/news/florida-politics/2021/04/13/desantis-wants-voters-signatures-to-match-would-his-pass-the-test/>:

DeSantis’ own John Hancock has undergone a transformation during his time in government, as demonstrated by 16 of his signatures compiled by the Tampa Bay Times from publicly available sources between 2008 and now.
[Gov. Ron DeSantis' signature variations are seen from 2008 to this year on official documents from the state and the federal government.]Gov. Ron DeSantis’ signature variations are seen from 2008 to this year on official documents from the state and the federal government. [ Photo illustration by ASHLEY DYE | Times ]

Experts and election officials who reviewed DeSantis’ signature history for the Times said some of the modifications in his penmanship could have posed trouble for election workers, especially if constrained to one point of comparison. In a handful of instances, it’s possible the ballot could have been rejected, they said.
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Posted in election administration<https://electionlawblog.org/?cat=18>

“Capitol Police Told to Hold Back on Riot Response on Jan. 6, Report Finds”<https://electionlawblog.org/?p=121636>
Posted on April 13, 2021 8:24 pm<https://electionlawblog.org/?p=121636> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/04/13/us/politics/capitol-police-riot-report.html>

The Capitol Police had clearer advance warnings about the Jan. 6 attack than were previously known, including the potential for violence in which “Congress itself is the target.” But officers were instructed by their leaders not to use their most aggressive tactics to hold off the mob, according to a scathing new report<https://www.nytimes.com/2021/04/13/us/politics/capitol-riot-police-report.html> by the agency’s internal investigator.

In a 104-page document, the inspector general, Michael A. Bolton, criticized the way the Capitol Police prepared for and responded to the mob violence on Jan. 6. The report was reviewed by The New York Times and will be the subject of a Capitol Hill hearing on Thursday.

Mr. Bolton found that the agency’s leaders failed to adequately prepare despite explicit warnings that pro-Trump extremists posed a threat to law enforcement and civilians and that the police used defective protective equipment. He also found that the leaders ordered their Civil Disturbance Unit to refrain from using its most powerful crowd-control tools — like stun grenades — to put down the onslaught.

The report offers the most devastating account to date of the lapses and miscalculations around the most violent attack on the Capitol in two centuries.

Three days before the siege, a Capitol Police intelligence assessment warned of violence from supporters of President Donald J. Trump who believed his false claims that the election had been stolen. Some had even posted a map of the Capitol complex’s tunnel system on pro-Trump message boards.

“Unlike previous postelection protests, the targets of the pro-Trump supporters are not necessarily the counterprotesters as they were previously, but rather Congress itself is the target on the 6th,” the threat assessment said, according to the inspector general’s report. “Stop the Steal’s propensity to attract white supremacists, militia members, and others who actively promote violence may lead to a significantly dangerous situation for law enforcement and the general public alike.”
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Posted in chicanery<https://electionlawblog.org/?cat=12>

“Kristen Clarke faced abuse for taking on Trump. Now she’s poised to lead Justice Department’s civil rights team.”<https://electionlawblog.org/?p=121634>
Posted on April 13, 2021 8:08 pm<https://electionlawblog.org/?p=121634> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/national-security/kristen-clarke-civil-rights-justice-department/2021/04/12/c3ca2294-9a0b-11eb-a6d0-13d207aadb78_story.html>

On Wednesday, Clarke will appear at a Senate confirmation hearing as President Biden’s nominee to lead the Justice Department’s civil rights division. She is poised to become the first woman confirmed to helm what former attorney general Eric H. Holder Jr. called the agency’s “crown jewel,”<https://www.justice.gov/opa/speech/attorney-general-eric-holder-washington-lawyers-committee-civil-rights-and-urban-affairs> returning to the office where she began her professional career two decades earlier as a line attorney.

In January, appearing with Biden and Vice President-elect Kamala D. Harris in Wilmington, Del., Clarke said the nation was “at a crossroads” and vowed to help “turn the page on hate and close the door on discrimination.”

“I see the future of America through the eyes of my son. And honestly, at times I am worried,” said Clarke, whose son, Miles, is 16. “Will he have full and equal access to the extraordinary opportunities of American life? Will he be able to embrace those opportunities in safety and dignity? Will all of America’s children?”

Her confirmation path is expected to be contentious, however. At the Lawyers’ Committee, Clarke was at the forefront of legal efforts to sue the Trump administration on voting rights, immigration, changes to the U.S. Census and the tear-gassing of protesters outside the White House last summer. She spoke out frequently<https://www.theskanner.com/opinion/commentary/25350-lawyers-group-blasts-trump-s-100-days-as-massive-rollback-on-civil-rights-enforcement> against Trump and former attorneys general Jeff Sessions and William P. Barr.

Now, some conservatives fear that Clarke and Vanita Gupta<https://www.washingtonpost.com/national-security/vanita-gupta-lisa-monaco-confirmation-hearing/2021/03/08/93613930-803e-11eb-ac37-4383f7709abe_story.html?itid=lk_inline_manual_17> — another civil rights lawyer, who is awaiting a Senate vote on her nomination to the Justice Department’s No. 3 position — will seek to quickly ramp up federal efforts to restructure local police departments, bolster prosecutions of hate crimes and expand voting access for minorities, and have sought to cast them as radical and extreme….

“When a civil rights lawyer has built an illustrious career in federal courts speaking out on equality and access, the question always is whether they are biased,” said Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, where Clarke worked from 2006 until 2011. “Very few talk about what makes Kristen so unique for this position in this special moment we are in. If you think about the array of civil rights legal organizations, it’s really Kristen who has been leading this very innovative work prosecuting hate groups.”

I very much support Kristen’s nomination, and believe she is a person of great integrity who is a fighter for the cause of justice for all Americans. Here’s a video <https://hammer.ucla.edu/programs-events/2020/election-meltdown-richard-l-hasen-kristen-clarke> from Feb. 2020 at the Hammer Museum, where Kristen and I talked about the problems facing American elections, moderated by Adam Winkler.
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>

“It’s Not Just Georgia: More Than A Dozen Other States Are Trying To Take Power Away From Local Election Officials”<https://electionlawblog.org/?p=121632>
Posted on April 13, 2021 1:55 pm<https://electionlawblog.org/?p=121632> by Rick Hasen<https://electionlawblog.org/?author=3>

New at 538.<https://fivethirtyeight.com/features/its-not-just-georgia-more-than-a-dozen-other-states-are-trying-to-take-power-away-from-local-election-officials/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Georgia’s Voting Law Will Make Elections Easier to Hack”<https://electionlawblog.org/?p=121630>
Posted on April 13, 2021 1:54 pm<https://electionlawblog.org/?p=121630> by Rick Hasen<https://electionlawblog.org/?author=3>

Larry Norden and Gowri Ramachandran for Slate.<https://slate.com/technology/2021/04/election-integrity-laws-georgia-security-threat.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Disability Rights Advocates Press Senate for Internet Voting Option in Voting Reforms”<https://electionlawblog.org/?p=121628>
Posted on April 13, 2021 10:23 am<https://electionlawblog.org/?p=121628> by Rick Hasen<https://electionlawblog.org/?author=3>

Steven Rosenfeld:<https://votingbooth.media/disability-rights-advocates-press-senate-for-internet-voting-option-in-voting-reforms/>

National disability rights organizations are urging the Senate to revise the massive House-passed election reform bill to allow an internet-based voting option for their constituents, who represent one-sixth<https://smlr.rutgers.edu/sites/default/files/schur_kruse_disability_electorate_projections.pdf> of the national electorate, and to recognize online voting as a federally sanctioned and regulated voting technology.

Their concerns and online voting remedy<https://acb.org/national-coalition-accessible-voting> have come into focus in recent months as upwards of 20 organizations representing voters with hearing, visual, cognitive and mobility impairments and sometimes requiring assistive technologies have formed a national coalition<https://www.ncavoting.org/> to press for more flexible voting options as Congress considers the most sweeping reforms in years.

The push for congressional approval of online voting could pose one of the most significant challenges yet for passage of the Democrat-drafted package. It pits two core constituencies—disability rights groups and cybersecurity advocates—against each other. These two cadres have clashed in the past when disability advocates successfully<https://www.majorityleader.gov/content/disabled-voters-seek-help-hava> pressed<https://www.majorityleader.gov/content/hoyer-submits-testimony-national-council-disability-forum-voting-access> Congress to spend billions on paperless voting machines in the early 2000s, the very systems that most states replaced after Russian interference in 2016’s election due to cybersecurity threats<https://www.nap.edu/resource/25120/Securing%20the%20Vote%20ReportHighlights.pdf>.

“This has been a vexing problem for a long time,” said Ion Sancho, who served for 28 years as supervisor of elections of Leon County, Florida, and retired after the 2016 election. “It’s been a touchy and difficult issue for elections administrators for as long as I can remember.”
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“Corporate America is backing away from Georgia’s anti-voting bill — after funding its sponsors”<https://electionlawblog.org/?p=121626>
Posted on April 13, 2021 10:20 am<https://electionlawblog.org/?p=121626> by Rick Hasen<https://electionlawblog.org/?author=3>

Salon reports.<https://www.salon.com/2021/04/13/corporate-america-is-backing-away-from-georgias-anti-voting-bill--after-funding-its-sponsors/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

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Rick Hasen
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UC Irvine School of Law
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http://electionlawblog.org<http://electionlawblog.org/>

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