[EL] ELB News and Commentary 2/11/21

Thu Feb 11 07:27:14 PST 2021

Letter to Facebook’s Oversight Board Supporting Trump Deplatforming As a Necessary Last Resort<https://electionlawblog.org/?p=120836>
Posted on February 11, 2021 7:23 am<https://electionlawblog.org/?p=120836> by Rick Hasen<https://electionlawblog.org/?author=3>

New letter<https://www.politico.com/f/?id=00000177-8e40-df6c-abf7-ae726a9b0000> I spearheaded from Julia Azari<https://www.marquette.edu/political-science/directory/julia-azari.php>, Associate Professor of Political Science, Marquette University; David Kaye<https://www.law.uci.edu/faculty/full-time/kaye/>, Clinical Professor of Law, UC Irvine; Jack Lerner<https://www.law.uci.edu/faculty/full-time/lerner/>, Clinical Professor of Law, UC Irvine; Janai Nelson<https://www.naacpldf.org/about-us/staff/janai-nelson/>, Associate Director-Counsel, NAACP-LDF; Cailin O’Connor<http://cailinoconnor.com/wp-content/uploads/2020/08/Cailin-OConnor-CV.pdf>, Associate Professor of Logic and Philosophy of Science, UC Irvine; Norm Ornstein<https://www.aei.org/profile/norman-j-ornstein/>, Emeritus Scholar, American Enterprise Institute; Bertrall Ross<https://www.law.berkeley.edu/our-faculty/faculty-profiles/bertrall-ross/>, Chancellor’s Professor of Law, UC Berkeley; Alex Stamos<https://cyber.fsi.stanford.edu/io/people/alex-stamos-0>, Director, Stanford Internet Observatory; James Owen Weatherall<https://www.faculty.uci.edu/profile.cfm?faculty_id=5909>, Professor of Logic and Philosophy of Science, UC Irvine, and me, as scooped<https://www.politico.com/newsletters/morning-tech/2021/02/11/pressure-builds-on-facebook-oversight-board-793313> by Politico.

Text of the letter:

Dear Oversight Board:

We write in our individual capacities to offer comments on the indefinite deplatforming of former U.S. President Donald J. Trump from Facebook and Instagram following his remarks during the January 6 insurrection at the U.S. Capitol. This letter also addresses related questions raised in the Board’s call<https://oversightboard.secure.force.com/apex/VisualAntidote__HostedFastForm?f=i6VO6LLfXbOt%2Bdjzhn2zNj%2B5yLrazO6pIHWc5cVT%2FzWMmmWJHflKUJzl708kZWe1> for public comments.

As scholars and leaders who have long studied election laws, democratic theory, the United States Constitution’s First Amendment, American politics, and the rule of law, we believe that removing Donald Trump from Facebook platforms for an indefinite period of time was the correct decision. Removal of a political leader from the platforms should be strongly disfavored, and it should be a last resort given the great benefits of robust political debate and protection for political and election-related speech. But Trump’s actions justified the step of indefinitely deplatforming him. Over many months, Trump consistently undermined public confidence in the fairness of the 2020 U.S. election results based upon false and discredited theories of voter fraud, and he encouraged violent insurrection on January 6, 2021, as Congress engaged in the formal process of counting the electoral college votes and declaring Joe Biden the winner over Trump of the presidential election. Had the platforms granted Trump continued, broad unmediated access, he could have provoked additional violence and potentially further undermined the peaceful transition of power which is essential to a working democracy.

As a private actor governed by U.S. law in the United States, Facebook has the right to include or exclude content as it sees fit, consistent with U.S. law. As a responsible corporate citizen, Facebook should ensure that its fora allow for robust, political debate. It should have general policies of non-discrimination across candidates and political views. The platforms should not be in the business of favoring one candidate or party over another, and instead allow readers and viewers access to a variety of political viewpoints and expressions of political speech. The platforms should be especially wary of removing the speech of political leaders, whose comments are both newsworthy and likely helpful to voters as they decide which candidates and parties to support or oppose.

Thus, platform rules should begin with the strong presumption to include political speech, especially from political leaders, that can inform debate, share information, and allow voters to make decisions consistent with their interests and values. Allowing a platform for political speech generally promotes democratic governance and merits inclusion on the platforms.

The strong presumption in favor of inclusive political speech should be overcome only upon a clear showing that the speech threatens to undermine, rather than support democratic governance. Just as the right to free speech does not justify falsely yelling “Fire!” in a crowded movie theater, political speech which raises a serious and imminent danger of undermining democratic governance should be removed from the platforms and serial offenders, even political leaders, should be deplatformed, at least on a temporary basis. Facebook should have clear rules embodying these principles.

The easiest case justifying removal of posts and potential deplatforming is political speech which calls for political violence against a democratically elected government or against people. Such speech has no place in a democratic discourse, and Facebook has a moral obligation not to spread such speech. Such speech need not rise to the level of calling for imminent lawless action (under the First Amendment Brandenberg standard applicable to government suppression of speech) to merit removal from a private platform like Facebook; instead, speech that consistently justifies or supports violence deserves no amplification over social media. Such posts should be removed whether or not they lead to eventual deplatforming. A repeated pattern of conduct justifies more severe repercussions.

In addition, speech that consistently spreads misinformation about the democratic process—speech about when, where, and how people vote, and speech that makes demonstrably false claims about elections being “stolen,” “rigged,” or “fraudulent”—is similarly dangerous to democratic governance and justifies sanctions from the platforms. Again, repetition of such statements is more blameworthy.

Under these standards, President Trump’s statements and course of conduct culminating on January 6, 2021 justified his deplatforming from social media. Before January 6 the President had made over 400 comments falsely calling the election into question. He encouraged his supporters to come to the Capitol on January 6 for “wild” protests. He gave a speech shared on social media that encouraged his supporters to march to the Capitol and interfere with the vote counting, and in the post that led to his deplatforming, he praised those engaged in insurrection with “love” and repeated false claims of a “fraudulent” and “stolen” election as the violence in the Capitol was ongoing.

Anyone who doubts the risks of such speech need only look at the events of January 6, 2021 in the U.S. Capitol. Not only did such speech lead to the deaths of five people and injuries to countless others, including police officers guarding the Vice President of the United States and Members of Congress; those political leaders came within moments of being kidnapped or killed but for the bravery of law enforcement. Without social media spreading Trump’s statements, it seems extremely unlikely these events would have occurred. The eventual deplatforming of Trump’s accounts helped defuse a dangerous and antidemocratic situation.

There no doubt will be close calls under a policy that allows the deplatforming of political leaders in extreme circumstances. This was not one of them.

Thank you for your consideration.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D120836&title=Letter%20to%20Facebook%E2%80%99s%20Oversight%20Board%20Supporting%20Trump%20Deplatforming%20As%20a%20Necessary%20Last%20Resort>
Posted in cheap speech<https://electionlawblog.org/?cat=130>

“When America Truly Became a Democracy: The Voting Rights Act of 1965 finally delivered on the stated ideals of this country. Now it hangs by a thread.”<https://electionlawblog.org/?p=120834>
Posted on February 11, 2021 7:07 am<https://electionlawblog.org/?p=120834> by Rick Hasen<https://electionlawblog.org/?author=3>

Extensive Vann Newkirk piece<https://www.theatlantic.com/magazine/archive/2021/03/voting-rights-act-democracy/617792/> in The Atlantic’s March issue.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D120834&title=%E2%80%9CWhen%20America%20Truly%20Became%20a%20Democracy%3A%20The%20Voting%20Rights%20Act%20of%201965%20finally%20delivered%20on%20the%20stated%20ideals%20of%20this%20country.%20Now%20it%20hangs%20by%20a%20thread.%E2%80%9D>
Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>

“2021-22 Redistricting Cycle Poses High Risk of Racial Discrimination in the South, New Projections Show”<https://electionlawblog.org/?p=120830>
Posted on February 11, 2021 7:01 am<https://electionlawblog.org/?p=120830> by Rick Hasen<https://electionlawblog.org/?author=3>

Brennan Center<https://www.brennancenter.org/our-work/analysis-opinion/2021-22-redistricting-cycle-poses-high-risk-racial-discrimination-south>:

The next round of redistricting in 2021 and 2022 is likely to be the most challenging in recent history and particularly detrimental to communities of color, according to a report by Michael C. Li<https://shared.outlook.inky.com/link?domain=www.brennancenter.org&t=eyJ0eXAiOiJKV1QiLCJhbGciOiJFUzI1NiJ9.eJxVkFFrg0AQhP_LPVu1gTxUKKQlaWlQS0STKIKcuo0ne5dw3nnR0v9eJS2lT8vCzOx-80kUUM5q4pFSghBUVCAUSGIRNk9BkXgfFDuwCEwiziQM1Ba0p1KeV2LQNtR6Us8Jf5uWk400Sl06L3dyxxhj_8u3z_KUO3C9gFRd7nBWNRTwDtlkfk-IJzSiRVQjgaoCoYcpz51-ms-kYoslXzYlD7EUEVbsQafHrKnEti-TZ1bxvS75i_b5tamHpYZjorNDdO8vojZtUxOO2GbtbkzjiIWvuzE4vC0CvmdBnLhZnJpsfXL9cbMI4sCE8ZMJ1xsdjsHjzNWBLIBThgWtawldN2PfyuCrH0IbqbF_u_j6BslYfIY.MEUCIFTuJeEGfmUrdVPEmIYIwkxojPwnNY5IDp4ler4yFgx2AiEAxcGnKsKY9gDHJUphzhLnacb1hgYWyOWoXlwQgK4_cTc>, one of the nation’s leading experts on redistricting and gerrymandering and senior counsel at the Brennan Center for Justice at NYU Law.

The Redistricting Landscape, 2021-22<https://shared.outlook.inky.com/link?domain=www.brennancenter.org&t=eyJ0eXAiOiJKV1QiLCJhbGciOiJFUzI1NiJ9.eJxVUG1LwzAQ_i_5vL6ssA8WhCmb4lgrK-1cS2Gk7bmmJum4JIur-N9tURE_HXc897x9EA1UsIaEpEKQksoapAYkM8KmKSkn4SvlCmYERpBgCFfqSnqhiP1SXo0LjRnRE8PfZnB8I63WZxWWXulZa91__G6Pp9LrDTq2x7fSQ1BAsW4dhHOPWk2XhimNrNZMnhxOZaNqegYn8IO5EwSjyHNGQmk4nxHdIlB95HCBUdcfvU92crnhlVi0lYh5JRNesxuTH4q2lptLld2zWuxNJR7MVry3zXVh4JCZ4iWZb4Oky7vcxgPvim435GnC4sfdEL08BZHYsyjN_CLNbbE6-dthHURpZOP0zsartYmH6HbKrwCPICjjR9o0Yzg11fNdmlj-NOFyat3fzj6_AL2qitY.MEYCIQDKwulLGz-g2Iv2F9NZ0yZDO6Qr-A1WxsOYCupvpvJNKwIhAK-JX7Ji1y0WSuHSBI-8_YPZxCUP4cKEjIRToXOAfnCT> provides an overview of the battles ahead over the political maps being drawn this year and next that will apply to Congress and state legislatures for the next ten years. The report categorizes the 50 states according to their projected risk for partisan gerrymandering and/or racially discriminatory maps.

“Expect a tale of two countries,” Li writes. “In parts of the country, newly enacted reforms and divided government will make it harder to force through partisan gerrymanders or racially discriminatory maps. In other states, however, there may be even greater room for unfair processes and results than in 2011, when the country saw some of the most gerrymandered maps in its history.”

The risk for abuse in map drawing will be especially high in the South, where fast population growth and demographic change in Texas, Florida, Georgia, and North Carolina will combine with single-party control of the process and weaker legal protections for communities of color.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D120830&title=%E2%80%9C2021-22%20Redistricting%20Cycle%20Poses%20High%20Risk%20of%20Racial%20Discrimination%20in%20the%20South%2C%20New%20Projections%20Show%E2%80%9D>
Posted in redistricting<https://electionlawblog.org/?cat=6>, Voting Rights Act<https://electionlawblog.org/?cat=15>

“PolitiFact – Trump did not win two-thirds of election lawsuits ‘where merits considered'”<https://electionlawblog.org/?p=120828>
Posted on February 10, 2021 6:58 pm<https://electionlawblog.org/?p=120828> by Rick Hasen<https://electionlawblog.org/?author=3>

Politifact reports.<https://www.politifact.com/factchecks/2021/feb/09/blog-posting/trump-did-not-win-two-thirds-election-lawsuits-whe/>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D120828&title=%E2%80%9CPolitiFact%20%E2%80%93%20Trump%20did%20not%20win%20two-thirds%20of%20election%20lawsuits%20%E2%80%98where%20merits%20considered%27%E2%80%9D>
Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“Massive Ballot Access Defeat in New York”<https://electionlawblog.org/?p=120826>
Posted on February 10, 2021 6:56 pm<https://electionlawblog.org/?p=120826> by Rick Hasen<https://electionlawblog.org/?author=3>

BAN<http://ballot-access.org/2021/02/10/massive-ballot-access-defeat-in-new-york/>:

On February 10, the Second Circuit refused to enjoin the new New York definition of a qualified political party. SAM Party of New York v Kosinski, 20-3047. Here is the twenty-page opinion<https://www.ca2.uscourts.gov/decisions/isysquery/378799c6-ac7a-4740-a2e1-2111b7bdbd75/1/doc/20-3047_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/378799c6-ac7a-4740-a2e1-2111b7bdbd75/1/hilite/>, which was written by Judge Michael H. Park, a Trump appointee. It is also signed by Judge Robert D. Sack, a Clinton appointee, and Steven J. Menashi, a Trump appointee.

The new definition requires a party to poll 2% of the presidential vote to retain its qualified status. The decision says there are two state interests in the new, more difficult requirement: (1) to improve the chances that the winner will get a majority of the popular vote; (2) to save money, because the state now has public funding for candidates for state office, although it doesn’t start until 2024.

Both justifications are utterly without merit. Point one could be solved if the state used ranked choice voting. Point two is easily rebutted by pointing out that the Second Circuit already ruled in a Connecticut case that states need not provide public funding to minor parties or independent candidates.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D120826&title=%E2%80%9CMassive%20Ballot%20Access%20Defeat%20in%20New%20York%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Sixth Circuit Rejects Libertarian Party Objection to Ohio Law Requiring Six of Seven Members of Ohio Elections Commission to Be Democrats (3) and Republicans (3)<https://electionlawblog.org/?p=120822>
Posted on February 10, 2021 4:39 pm<https://electionlawblog.org/?p=120822> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the unanimous opinion at this link.<https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0030p-06.pdf>

Seems like a pretty good deal for a two-party duopoly.<https://chicagounbound.uchicago.edu/supremecourtrev/vol1997/iss1/9/>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D120822&title=Sixth%20Circuit%20Rejects%20Libertarian%20Party%20Objection%20to%20Ohio%20Law%20Requiring%20Six%20of%20Seven%20Members%20of%20Ohio%20Elections%20Commission%20to%20Be%20Democrats%20(3)%20and%20Republicans%20(3)>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Fourth Circuit Won’t Conduct En Banc Review of Decision Upholding North Carolina’s Latest Voter ID Law<https://electionlawblog.org/?p=120820>
Posted on February 10, 2021 2:54 pm<https://electionlawblog.org/?p=120820> by Rick Hasen<https://electionlawblog.org/?author=3>

North State Journal reports. There’s still an ongoing state court challenge.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D120820&title=Fourth%20Circuit%20Won%E2%80%99t%20Conduct%20En%20Banc%20Review%20of%20Decision%20Upholding%20North%20Carolina%E2%80%99s%20Latest%20Voter%20ID%20Law>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Brindisi: New York should investigate ‘massive disenfranchisement of voters’”<https://electionlawblog.org/?p=120817>
Posted on February 10, 2021 8:21 am<https://electionlawblog.org/?p=120817> by Rick Hasen<https://electionlawblog.org/?author=3>

Syracuse.com:<https://www.syracuse.com/politics/2021/02/brindisi-new-york-should-investigate-massive-disenfranchisement-of-voters.html>

Former Rep. Anthony Brindisi said today that he conceded a disputed election to Claudia Tenney to spare the 22nd Congressional District<https://www.syracuse.com/topic/22nd%20Congressional%20District/> from a months-long battle that could further divide the community.

But Brindisi also called for authorities to investigate irregularities and other systemic voting problems exposed in a three-month legal fight over ballots cast in eight counties across Upstate New York.

“I hope some higher authority comes in and investigates what I think is a massive disenfranchisement of voters in the district,” Brindisi told syracuse.com in his first interview since conceding the election.

See also Oneida County exec asks Cuomo to fire elections commissioners after NY22 debacle<https://www.syracuse.com/politics/cny/2021/02/oneida-county-exec-asks-cuomo-to-fire-elections-commissioners-after-ny22-debacle.html>.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D120817&title=%E2%80%9CBrindisi%3A%20New%20York%20should%20investigate%20%E2%80%98massive%20disenfranchisement%20of%20voters%E2%80%99%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Top New York elections board lawyer retires amid misconduct probe”<https://electionlawblog.org/?p=120815>
Posted on February 10, 2021 8:17 am<https://electionlawblog.org/?p=120815> by Rick Hasen<https://electionlawblog.org/?author=3>

NY Post:<https://nypost.com/2021/02/08/top-ny-elections-board-lawyer-retires-amid-misconduct-probe/>

The top lawyer at the embattled New York City Board of Elections has retired amid a Department of Investigation probe of his <https://nypost.com/2020/09/01/nyc-board-of-elections-lawyer-takes-leave-amid-investigation/> conduct, The Post has learned.

Chief counsel Steven Richman submitted his retirement papers last month and left the agency effective Jan. 30, an agency official said.

Richman, employed by the BOE since 1999, took a leave of absence in September amid the DOI probe — a key period when the elections agency prepared for new early voting and expanded mail-ballot systems for the November presidential election as well as special elections amid the <https://nypost.com/2020/12/04/covid-19-outbreak-at-elections-offices-could-affect-nyc-race/> coronavirus pandemic, and a new ranked choice <https://nypost.com/2020/12/09/new-york-pols-sue-to-delay-new-ranked-choice-voting-system/> voting system being implemented this year.

He never returned.

Richman, a Brooklyn resident who sat next to executive director Michael Ryan at board meetings, oversaw all election-related legal issues and court cases..

A DOI spokesperson said, “The investigation is ongoing and DOI declines further comment.”
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D120815&title=%E2%80%9CTop%20New%20York%20elections%20board%20lawyer%20retires%20amid%20misconduct%20probe%E2%80%9D>
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/>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20210211/c28cf284/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2021 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20210211/c28cf284/attachment.png>