[EL] ELB News and Commentary 4/23/21

Fri Apr 23 06:25:20 PDT 2021

My New One in the NY Times on the New Danger of Election Subversion<https://electionlawblog.org/?p=121777>
Posted on April 23, 2021 6:23 am<https://electionlawblog.org/?p=121777> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this NY Times oped<https://www.nytimes.com/2021/04/23/opinion/republicans-voting-us-elections.html>. It begins:

A new, more dangerous front has opened in the voting wars, and it’s going to be much harder to counteract than the now-familiar fight over voting rules. At stake is something I never expected to worry about in the United States: the integrity of the vote count. The danger of manipulated election results looms.

We already know the contours of the battle over voter suppression. The public has been inundated with stories about Georgia’s new voting law, from Major League Baseball’s decision<https://www.nytimes.com/2021/04/03/us/politics/mlb-georgia-voting-kemp.html> to pull the All-Star Game from Atlanta, to criticism of new restrictions that prevent giving water<https://www.politifact.com/factchecks/2021/mar/29/josh-holmes/facts-about-georgias-ban-food-water-giveaways-vote/> to people waiting in long lines to vote. With lawsuits already filed<https://www.gpb.org/news/2021/03/30/here-are-all-the-lawsuits-challenging-georgias-new-voting-law> against restrictive aspects of that law and with American companies<https://www.cnbc.com/2021/03/31/major-us-companies-take-aim-at-georgias-new-voting-restrictions.html> and elite law firms<https://www.nytimes.com/2021/04/12/business/corporate-leaders-voting-laws.html> lined up against Republican state efforts to make it harder to register and vote, there’s at least a fighting chance that the worst of these measures will be defeated or weakened.

The new threat of election subversion is even more concerning. These efforts target both personnel and policy; it is not clear if they are coordinated. They nonetheless represent a huge threat to American democracy itself.

Some of these efforts involve removing from power those who stood up to President Donald Trump’s attempts to overturn the results of the 2020 election. The Georgia law removes<https://www.nytimes.com/2021/04/02/us/politics/georgia-voting-law-annotated.html#link-6d22d3fd> the secretary of state from decision-making power on the state election board. This seems aimed clearly at Georgia’s current Republican secretary of state, Brad Raffensperger, punishing him for rejecting Mr. Trump’s entreaties to “find” 11,780 votes<https://www.washingtonpost.com/politics/trump-raffensperger-call-georgia-vote/2021/01/03/d45acb92-4dc4-11eb-bda4-615aaefd0555_story.html> to flip Joe Biden’s lead in the state….

Combating efforts that can undermine the fair administration of elections and vote counting is especially tricky. Unlike issues of voter suppression, which are easy to explain to the public (what do you mean you can’t give water to voters waiting in long lines?!?), the risks of unfair election administration are inchoate. They may materialize or they may not, depending on how close an election is and whether Mr. Trump himself or another person running for office is willing to break democratic norms and insist on an unfair vote count.

So what can be done? To begin with, every jurisdiction in the United States should be voting with systems that produce a paper ballot that can be recounted in the event of a disputed election. Having physical, tangible evidence of voters’ choices, rather than just records on electronic voting machines, is essential<https://slate.com/technology/2021/04/election-integrity-laws-georgia-security-threat.html> to both guard against actual manipulation and protect voter confidence in a fair vote count. Such a provision is already containe<https://www.congress.gov/bill/117th-congress/house-bill/1/text#toc-HCB806A18E6E545B49D6997D6AE9995EB>d in H.R. 1, the mammoth Democrat-sponsored voting bill.

Next, businesses and civic leaders must speak out not just against voter suppression but at efforts at election subversion<https://www.nytimes.com/2021/04/06/upshot/georgia-election-law-risk.html>. The message needs to be that fair elections require not just voter access to the polls, but procedures to assure that the means of conducting the election are fair, auditable and verifiable by representatives of both political parties and nongovernmental organizations.

Congress must also fix the rules<https://www.theatlantic.com/ideas/archive/2021/01/we-cant-let-our-elections-be-vulnerable-again/617542/> for counting Electoral College votes, so that spurious objections to the vote counts like the ones we saw on Jan. 6 from senators and representatives, including Senators Josh Hawley and Ted Cruz, are harder to make. It should take much more than a pairing of a single senator and a single representative to raise an objection, and there must be quick means to reject frivolous objections to votes fairly cast and counted in the states.

Congress can also require states to impose basic safeguards in the counting of votes in federal elections. This is not part<https://www.nytimes.com/2021/04/06/upshot/georgia-election-law-risk.html> of the H.R. 1 election reform bill, but it should be, and Article I, Section 4 of the Constitution gives Congress wide berth to override state laws in this area.

Finally, we need a national effort to support those who will count votes fairly. Already we are seeing<https://www.cnn.com/2021/02/19/politics/election-officials-lose-and-leave-jobs/index.html> a flood<https://whyy.org/articles/pa-election-officials-are-burnt-out-and-leaving-their-jobs-after-2020-nightmare/> of competent election administrators retiring from their often-thankless jobs, some after facing threats of violence<https://www.nytimes.com/2020/12/03/us/election-officials-threats-trump.html> during the 2020 vote count. Local election administrators need political cover and the equivalent of combat pay, along with adequate budget resources to run fair elections. It took hundreds of millions of dollars<https://www.npr.org/2020/12/08/943242106/how-private-money-from-facebooks-ceo-saved-the-2020-election> in private philanthropy to hold a successful election in 2020; that need for charity should not be repeated….
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, The Voting Wars<https://electionlawblog.org/?cat=60>

“The Impact of Census Timeline Changes on the Next Round of Redistricting”<https://electionlawblog.org/?p=121775>
Posted on April 22, 2021 4:14 pm<https://electionlawblog.org/?p=121775> by Rick Hasen<https://electionlawblog.org/?author=3>

New Brennan Center report.<https://www.brennancenter.org/our-work/research-reports/impact-census-timeline-changes-next-round-redistricting>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“‘Hindsight Is 20/20’: An Internal Report Shows How Facebook Failed To Prevent The “Stop The Steal” Movement”<https://electionlawblog.org/?p=121773>
Posted on April 22, 2021 9:40 am<https://electionlawblog.org/?p=121773> by Rick Hasen<https://electionlawblog.org/?author=3>

BuzzFeed News:<https://www.buzzfeednews.com/article/craigsilverman/facebook-failed-stop-the-steal-insurrection>

Last month, Facebook CEO Mark Zuckerberg testified in front of a House of Representatives committee that his company had done its part “to secure the integrity of the election.” While the social network did not catch everything, the billionaire chief executive said, Facebook had “made our services inhospitable to those who might do harm” in the lead-up to the Jan. 6 insurrection.

Less than a week after his appearance, however, an internal company report reached a far different conclusion: Facebook failed to stop a highly influential movement from using its platform to delegitimize the election, encourage violence, and help incite the Capitol riot.

Shared on Facebook’s employee communication platform last month, the report is a blunt assessment of how people connected to “Stop the Steal,” a far-right movement based on the conspiracy theory that former president Donald Trump won the 2020 US presidential election, used the social network to foment an attempted coup. The document explicitly states that Facebook activity from people connected to Stop the Steal and other Trump loyalist groups including the Patriot Party played a role in the events of Jan. 6, and that the company’s emphasis on rooting out fake accounts and “inauthentic behavior” held it back from taking preemptive action when real people were involved.

“Hindsight is 20/20, at the time, it was very difficult to know whether what we were seeing was a coordinated effort to delegitimize the election, or whether it was free expression by users who were afraid and confused and deserved our empathy,” reads the report, which was put together by an internal task force studying harmful networks and obtained by BuzzFeed News. “But hindsight being 20/20 makes it all the more important to look back to learn what we can about the growth of the election delegitimizing movements that grew, spread conspiracy, and helped incite the Capitol insurrection.”

The report, titled “Stop the Steal and Patriot Party: The Growth and Mitigation of an Adversarial Harmful Movement,” provides yet another case study<https://www.buzzfeednews.com/article/ryanmac/facebook-employees-slam-zuckerberg-kenosha-militia-shooting> of how relatively small but coordinated groups of people<https://www.vox.com/recode/2021/4/19/22388231/amy-klobuchar-vaccine-misinformation-facebook-twitter-superspreaders> are able to wreak havoc<https://www.buzzfeednews.com/article/ryanmac/facebook-failed-kenosha> and spread misinformation<https://www.buzzfeednews.com/article/craigsilverman/how-facebook-groups-are-being-exploited-to-spread> on the world’s dominant social network. It’s also a sober admission that a company, which recorded more than $29 billion<https://investor.fb.com/investor-news/press-release-details/2021/Facebook-Reports-Fourth-Quarter-and-Full-Year-2020-Results/default.aspx> in profit last year, still struggles to track and preempt networks of people seeking to sow discord and undermine liberal democracy in the US and around the world<https://www.buzzfeednews.com/article/craigsilverman/facebook-ignore-political-manipulation-whistleblower-memo>.

Even though the company spent months preparing for potential delegitimization of the election from Trump and his supporters, Facebook was outmaneuvered by a powerful network of coordinated accounts that promoted groups where members glorified hate, incited violence, and sought to spread a big election lie, according to the report. It notes that while Facebook was satisfied “at having made it past the election without major incident,” that feeling was “tempered by the rise in angry vitriol and a slew of conspiracy theories that began to steadily grow” after Election Day, Nov. 3.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>, chicanery<https://electionlawblog.org/?cat=12>

“Protect Democracy Releases Report on Election Interference Schemes by State Legislators”<https://electionlawblog.org/?p=121771>
Posted on April 22, 2021 8:58 am<https://electionlawblog.org/?p=121771> by Rick Hasen<https://electionlawblog.org/?author=3>

Release of an important report:<https://protectdemocracy.org/update/protect-democracy-releases-report-on-election-interference-schemes-by-state-legislators/>

Today, Protect Democracy released a new report<https://assets.documentcloud.org/documents/20688594/democracy-crisis-report-april-21.pdf> titled, Democracy Crisis in the Making: How State Legislatures are Politicizing, Criminalizing, and Interfering with Elections, written with Law Forward and the States United Democracy Center. The report describes an under-reported trend: Across the country, state legislators are proposing bills that would give partisan state legislators greater control over elections while hamstringing experienced state and local election administrators who have traditionally run our voting systems.

As of April 6, at least 148 such bills have been introduced in 36 states. Many of the bills would make elections more difficult to administer or even unworkable; make it more difficult to finalize election results; allow for election interference and manipulation by hyper-partisan actors; and, in the worst cases, allow state legislatures to overturn the will of the voters and precipitate a democracy crisis. If these bills had been in place in 2020, they would have significantly added to the turmoil of the post-election period, and raised the prospect that the outcome of the election would have been contrary to the popular vote.
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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
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>

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