[EL] ELB News and Commentary 4/28/21

[Rick Hasen]

“Biden-aligned nonprofit launches voting rights initiative”<https://electionlawblog.org/?p=121850>
Posted on April 28, 2021 8:12 am<https://electionlawblog.org/?p=121850> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2021/04/28/biden-aligned-nonprofit-voting-rights-484870>

A nonprofit group founded by allies of President Joe Biden is launching a voting rights initiative, the latest sign that the White House views the issue as a key part of Biden’s early agenda.

Building Back Together said its voting rights program would be led by Bob Bauer, who advised Biden’s presidential campaign and was White House counsel during the Obama administration.

“A broad-based coalition is required to expose the serious and continuing disinformation about the 2020 election, and to defend against the use of that disinformation to advance wholly unjustified and all too often flatly illegal restrictions on access to the polls,” Bauer said in an announcement shared with POLITICO. “We also need to stand behind the election administrators of both parties now under attack for their dedicated non-partisan service to voters.”

Bauer will be joined by Rubén Lebrón, who will be the program’s voting rights director. The group promised to promote federal legislation, “support pro-voter advocacy groups in analyzing and developing strategic responses to state election laws and practices,” and coordinate with voting rights groups on data sharing and messaging. It said it would partner with organizations including Fair Fight — which is led by Georgia Democrat Stacey Abrams — the ACLU and Common Cause.

The group listed nine states as its “initial priority states”: Arizona, Georgia, Florida, Michigan, New Hampshire, North Carolina, Pennsylvania, Texas and Wisconsin.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Extremists Find a Financial Lifeline on Twitch; QAnon adherents and other far-right influencers are making thousands of dollars broadcasting election and vaccine conspiracy theories on the streaming site.”<https://electionlawblog.org/?p=121848>
Posted on April 28, 2021 7:40 am<https://electionlawblog.org/?p=121848> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/04/27/technology/twitch-livestream-extremists.html>

Twitch comes with a bonus: The service makes it easy for streamers to make money, providing a financial lifeline just as their access to the largest online platforms has narrowed. The site is one of the avenues, along with apps like Google Podcasts<https://www.nytimes.com/2021/03/25/arts/google-podcasts-extremism.html>, where far-right influencers have scattered as their options for spreading falsehoods have dwindled.

Twitch became a multibillion-dollar business thanks to video gamers broadcasting their play of games like Fortnite and Call of Duty. Fans, many of whom are young men, pay the gamers by subscribing to their channels or donating money. Streamers earn even more by sending their fans to outside sites to either buy merchandise or donate money.

Now Twitch has also become a place where right-wing personalities spread election and vaccine conspiracy theories, often without playing any video games. It is part of a shift at the platform, where streamers have branched out from games into fitness, cooking, fishing and other lifestyle topics in recent years.

But unlike fringe livestreaming sites like Dlive<https://www.nytimes.com/2021/01/08/technology/dlive-capitol-mob.html> and Trovo<https://www.mediamatters.org/white-nationalism/january-6-insurrectionists-and-other-far-right-figures-are-congregating-gaming>, which have also offered far-right personalities moneymaking opportunities, Twitch attracts far larger audiences. On average, 30 million people visit the site each day, the platform said.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>


WaPo Fact Checker Gives Stacey Abrams Two Pinnochios for Claims About New Georgia Law Eliminating “Hours of Voting”<https://electionlawblog.org/?p=121846>
Posted on April 28, 2021 7:36 am<https://electionlawblog.org/?p=121846> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/2021/04/28/stacey-abramss-pitch-that-new-georgia-law-eliminates-hours-voting/>:

This is a good example of how different phrasing can change the Pinocchio count. Abrams tried to make the same general point as Biden, but she did it more artfully, especially in the clip that went viral. She made clear that she was talking about early-voting rules and she used words such as “may,” “optional” and “can,” avoiding the certitude of Biden’s statements.

At the same time, Abrams leaves the impression that the previous hours were 7 a.m. to 7 p.m. and avoids saying the previous law had a vague “normal business hours” standard that sometimes meant even less than 9 a.m. to 5 p.m. For ordinary people not attuned to the debate over the Georgia law, her language misleadingly implies that voting is restricted to 9 a.m. to 5 p.m., especially when she says the law “eliminates hours of voting.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


California: “Facebook, Google, other corporate giants flooded Newsom with record $226 million in charity donations in 2020”<https://electionlawblog.org/?p=121844>
Posted on April 28, 2021 7:21 am<https://electionlawblog.org/?p=121844> by Rick Hasen<https://electionlawblog.org/?author=3>

LA Times:<https://www.latimes.com/california/story/2021-04-27/corporations-donate-226-million-toward-newsom-2020>

Facebook, Google and Blue Shield of California are among the companies that contributed $226 million to government causes on Gov. Gavin Newsom’s behalf last year, an unprecedented level of spending that is raising alarms about the influence large corporations are amassing in Sacramento.

State records reviewed by The Times show that so-called “behested payments” surged in 2020 compared with the year prior, when companies gifted $12.1 million on Newsom’s behalf. The governor’s haul last year during the COVID-19 pandemic was six times as much as that reported by former Gov. Jerry Brown during his final eight years in office combined.

With no limit on how much money can be donated by organizations or individuals at the behest of the governor, millions of dollars flowed in to prop up public services during the pandemic and fund Newsom’s favored programs, including an effort to address homelessness and a public safety campaign promoting the importance of wearing masks.

The corporations say they were simply trying to help the state in a time of need. But no matter how noble the cause, critics fear the donations could allow corporations to hold more sway in state government. They noted many of the donors have other business before the governor, received no-bid government contracts over the last year or were seeking favorable appointments on important state boards, which they say creates the appearance of a pay-to-play system….

Under California law, a donation is considered a behested payment when an elected official or someone acting on their behalf asks an organization to donate money or services to a nonprofit or government agency for a legislative, governmental or charitable purpose, such as supplying free air time to run public health ads or giving cash to the governor’s program promoting volunteerism. General requests for charitable donations not directed at any particular organization are not required to be reported as behested payments, according to the state’s campaign finance watchdog agency, the Fair Political Practices Commission.

The top donor of behested payments to Newsom in 2020 was tech giant Facebook, which gave $27 million for gift cards that went to front-line healthcare workers and for public health ads. Facebook founder Mark Zuckerberg and his wife, Dr. Priscilla Chan, gave another $3.7 million for COVID-19 related efforts such as polling services aimed at improving public health response and help with the state’s public awareness campaign, as well as money for the state’s wildfire recovery efforts.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, conflict of interest laws<https://electionlawblog.org/?cat=20>


INSTITUTIONAL REALISM, DISCLOSURE LAWS, AND THE AMERICANS FOR PROSPERITY CASE<https://electionlawblog.org/?p=121842>
Posted on April 27, 2021 12:38 pm<https://electionlawblog.org/?p=121842> by Richard Pildes<https://electionlawblog.org/?author=7>

There’s an intriguing, underappreciated aspect to the constitutional issues before the Supreme Court in this case, which involves California’s requirement that certain charitable organizations which fundraise in the state file non-public forms with the Attorney General’s office that include disclosure of the identities of substantial contributors.

If these forms remained confidential with the AG’s office, as they are supposed to be under CA law, there would not be much risk that contributors to controversial organizations would be harassed, retaliated against, or chilled from donating.  But a key fact is that CA has a bad track record of inadvertently publicly disclosing some of these forms; state employees posted over 1,800 of them online.  The state now asserts it has instituted new protocols that will ensure the confidentiality of these forms going forward.  Understandably, there are questions about how much confidence anyone should have that these new protocols will be fully effective.  But even if they are, petitioners contend that CA’s track record of exposing contributors will still exercise a chilling effect on future donors.

CA’s law is being challenged both on its face and as-applied.  If the law is upheld on its face, CA could still impose the filing requirement, but individual charities could argue that their donors, in particular, face a reasonable probability of harassment, retaliation, and the like – and that the law is therefore unconstitutional as applied to them.  I want to focus on the as-applied issue (though my point will ultimately apply to the facial challenge as well).

Normally, an as-applied challenge means that the way a general law applies to the particular circumstances of an individual or group makes that law unconstitutional with respect to that person or group.  But here, it would be the combination of California’s inability to follow its own law and rules¸ along with the specific vulnerability of particular charities, that would make the law unconstitutional as applied to that charity.  That’s the interesting twist:  I cannot recall a case (maybe others can) in which a state law or policy is unconstitutional as-applied because the state’s track record means the state cannot be assumed to adhere to its own policies.

Again, if CA could be trusted to keep these non-public forms actually non-public, the risk that AFP’s donors would be harassed would be extremely low.  Put another way:  if this case came from a state that required these forms but which had never publicly disclosed any of the information on those forms, would an as-applied challenge succeed?

This aspect of the case does also potentially affect certain versions of the facial challenge.  Thus, the ACLU argues that the law should be treated as a “de facto” public-disclosure requirement, given CA’s history of incompetent disclosure, and struck down on its face partly for that reason:  “But in light of California’s record of inadvertently publicizing these sensitive documents, its demand should be treated as a de facto public-disclosure requirement, triggering a more stringent form of exacting scrutiny. The record in this case discloses a disturbing pattern of failures to keep the forms confidential.”

 The intriguing aspect to all this is that the Court is being asked to take an “institutionally realist” view of California’s executive branch.  Even though CA officials are not supposed to leak these forms to the public, and are even prohibited by law from doing so, the reality is that they have demonstrated over and over again a failure to follow their own law and protocols.  Normally, courts assume a “presumption of regularity” to the conduct of government.  Thus, this case implicates, in my terms<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2411141>, the tension in constitutional law between the Court taking a more “realist” or more “formalist” stance toward public institutions — in this case, toward CA’s executive branch.  In a more formal stance, the Court would say CA law requires these forms to be kept confidential and we decide the case on that basis.  But from the oral argument, it appears the Justices are likely to assess CA’s law against the reality of how its government actually functions (or malfunctions).

 In the major precedents on disclosure and the First Amendment, the risk of retaliation did not result from the government failing to follow its own laws.  In NAACP v. Alabama and the Gremillion case, the forms were meant to be publicly disclosed.  In Shelton v. Tucker, the state could fire teachers at will, which is what made the disclosure laws unconstitutional there.

In the AFP case, petitioners do offer one theory that would strike down the CA law whether or not the state had a clean track record; the argument is that the state does not have a strong enough interest to require these forms in the first place.  But if AFP wins, either in the Supreme Court or on remand, based in part on CA’s record of incompetence, that will reflect the courts deciding to take an institutionally realist view of state government.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“California: The Ball is in Newsom’s court — signature removal laws, spending issues and the signature failure rates”<https://electionlawblog.org/?p=121840>
Posted on April 27, 2021 11:36 am<https://electionlawblog.org/?p=121840> by Rick Hasen<https://electionlawblog.org/?author=3>

The Recall Elections Blog.<https://recallelections.blogspot.com/2021/04/california-ball-is-in-newsoms-court.html>
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Posted in recall elections<https://electionlawblog.org/?cat=11>


In Odd Ruling About U.S. Territorial Citizen Voting, Court Holds It Lacks Power to Remedy Voting Rights Violation<https://electionlawblog.org/?p=121837>
Posted on April 27, 2021 10:45 am<https://electionlawblog.org/?p=121837> by Rick Hasen<https://electionlawblog.org/?author=3>

Odd decision in Reeves v. Nago<https://d3n8a8pro7vhmx.cloudfront.net/wethepeopleproject/pages/244/attachments/original/1619306648/Reeves_v._Nago__Order_Granting_MTD.pdf?1619306648>, holding plaintiffs lack standing because court lacks the power to remedy a voting rights violation. Nick Stephanopoulos explains in the tweet thread starting here:<https://twitter.com/ProfNickStephan/status/1386859061740777477>

More on the case at Equally American.<https://www.equalrightsnow.org/reeves>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Originalist and Textualist Justices Should Reject Argument that First Amendment Includes Right to Anonymous Association, and Instead Apply Well-Established Exacting Scrutiny in AFP Case<https://electionlawblog.org/?p=121833>
Posted on April 27, 2021 8:58 am<https://electionlawblog.org/?p=121833> by Rick Hasen<https://electionlawblog.org/?author=3>

Yesterday <https://electionlawblog.org/?p=121818> I wrote about how I understood the oral argument in AFP v. Bonta. Today I want to highlight some points raised by Justices Gorsuch, Kavanaugh, and Barrett about whether the First Amendment includes a right to anonymously associate. You can see these arguments in the now-released transcript<https://www.supremecourt.gov/oral_arguments/argument_transcripts/2020/19-251_l537.pdf>.

Justice Gorsuch raised the question about whether requiring associations to disclosure their donors would be a form of compelled speech. And Justices Kavanaugh and Barrett both brought up AFP’s argument that somehow compelling the disclosure of donor information violates the right to assembly guaranteed in the First Amendment.

These are odd arguments for textualists and originalists, and not at all in line with the views Justice Scalia offered of the First Amendment as a matter of text. The basic textual point is that the right to speak and associate are not directly infringed by disclosure requirements, since one can still freely speak and associate where there is no risk of retaliation or harassment (and there’s an exemption when there is under Brown v. Socialist Workers and Buckley). Nor does a disclosure requirement prevent anyone from assembling anywhere to seek government redress of their grievances.

Contrary to a textual reading of the First Amendment, Justice Gorsuch seemed to argue that anonymity is part of the First Amendment right itself, which is akin to finding a privacy right in the penumbras of the speech and assembly rights.  That’s not an approach I expected to hear him even exploring, given his jurisprudential commitments.

As to compelled speech objection, since the state is not asking the charity to speak, but rather to disclose information already contained in its own records and subject to inspection, nothing is compelled.

There seems to be more than a majority of the Court willing to apply exacting scrutiny to disclosure requirements, and also a majority finding that California’s leaky system went too far in allowing donor information to be disclosed without good reason. That’s good reason to accept AFP’s as-applied challenge, and not use the case to accept a facial challenge to fundamentally rewrite First Amendment doctrine about the constitutionality of campaign finance disclosure generally.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>


“If D.C. Becomes a State, the National Mall Gets to Vote for President”<https://electionlawblog.org/?p=121831>
Posted on April 27, 2021 8:39 am<https://electionlawblog.org/?p=121831> by Rick Hasen<https://electionlawblog.org/?author=3>

Ben Jacobs:<https://nymag.com/intelligencer/2021/04/dc-statehood-could-give-the-national-mall-electoral-votes.html>

On Thursday, Democrats in the House passed a bill on a straight party-line vote that would carve almost all of what’s now Washington, D.C., out of the federal district and create a state called Washington, Douglass Commonwealth. (To not only differentiate it from the other state of Washington but to replace the more problematic associations to Christopher Columbus with that of abolitionist Frederick Douglass). It would get one voting member in the House and two Senate seats. Only 45 of the 50 Democratic senators have signed on to the proposal, and even if it gets a majority, the legislation would still be subject to a Republican-led filibuster that would take 60 votes to break.

Even assuming the legislation surmounts all these obstacles and a 51st state enters the Union, there is still one problem: D.C. statehood would still leave unaltered the 23rd Amendment to the Constitution, ratified in 1961, to give the district three electoral votes in presidential elections. The remnant federal district — including the White House, the Capitol, and the National Mall — would be an area of roughly two square miles that snake around downtown, avoiding homes and private businesses. Depending on who is camping out on the Mall any given night, the First Family at 1600 Pennsylvania Avenue could be the only residents in what’s left.

There’s no easy fix for such a scenario, because it would take a new constitutional amendment to undo the 23rd Amendment, which is far more difficult to pass than simple legislation. Each chamber of Congress would have to pass it by a two-thirds majority, and then it would have to be ratified by three-fourths of state legislatures. The result is a potential nightmare scenario in which a federal district exists where “zombie” electoral votes could be cast on behalf of people camping out on the Mall overnight for partisan political advantage. Eleanor Holmes Norton<https://nymag.com/intelligencer/2020/07/eleanor-holmes-norton-on-the-fight-for-d-c-s-statehood.html>, D.C.’s nonvoting delegate to Congress, predicted less trouble if such a thing came to pass. “You will never see a passage of a bill as quickly as the 23rd Amendment [repeal] passes when that time comes,” she says.

Stephen Vladeck, a professor at the University of Texas School of Law who has studied the constitutional issues around this, said that even without repeal, the text of the amendment gives Congress the power to enforce it “by appropriate legislation.” This means that Congress could simply pass a bill by the normal legislative process to, for example, hand the district’s electoral votes to the winner of the national popular vote, absent a new amendment.
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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
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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