[EL] ELB News and Commentary 2/22/21

Rick Hasen rhasen at law.uci.edu
Mon Feb 22 08:07:49 PST 2021 

“A partisan battle in an overreach of a case”: Minority voters are caught between the political parties at the Supreme Court, with the Voting Rights Act hanging in the balance (My SCOTUSBlog Preview of Brnovich)<https://electionlawblog.org/?p=120947>
Posted on February 22, 2021 8:02 am<https://electionlawblog.org/?p=120947> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this analysis<https://www.scotusblog.com/2021/02/a-partisan-battle-in-an-overreach-of-a-case/> for SCOTUSBlog. It begins:

Brnovich v. Democratic National Committee<https://www.scotusblog.com/case-files/cases/brnovich-v-democratic-national-committee/> is a strange voting rights case. Rather than the typical case, in which a voting rights group representing minority voters sues a state or locality for engaging in electoral discrimination, this case pits the two major political parties against each other, and Republican officials in Arizona against Democratic officials. Amicus briefs from voting rights groups filed in Brnovich exhibit strong concern about preserving Section 2 of the Voting Rights Act as a tool to tackle discriminatory voting laws. Doing so will be tough before a new conservative supermajority on the Supreme Court….

Generally speaking, voting rights lawyers have been reluctant to push the use of Section 2 too aggressively, likely worried that if a case got to the Supreme Court, the increasingly conservative body would weaken Section 2 protections or even find aspects of it unconstitutional. The Democratic Party seemed to have no such worry, and in Brnovich, the party challenges two Arizona policies that are far from the most egregious voting rights violations. One policy prevents Arizona officials from counting votes when voters accidentally cast them in the wrong precinct; the other bars third party groups from collecting mail-in ballots (a practice pejoratively referred to as “ballot harvesting”<https://lalawyer.advanced-pub.com/?issueID=16&pageID=17>).

The Democratic Party’s aggressiveness in using Section 2 in this case, and the deeply split en banc U.S. Court of Appeals for the 9th Circuit decision siding with the Democrats, has provided an opportunity for the state’s Republican Party, its Republican attorney general and the Trump administration (which filed an amicus brief on behalf of the United States before Donald Trump left office) to suggest various ways to read Section 2 as applied to vote denial claims in very stingy ways. From an enhanced “proximate causation” requirement suggested by the United States<https://www.supremecourt.gov/DocketPDF/19/19-1257/162895/20201207160121126_19-1257tsacUnitedStates.pdf>, to a carve-out from Section 2 for laws that affect voter “qualifications” or “time, place, and manner” restrictions for voting, the briefs<https://www.supremecourt.gov/DocketPDF/19/19-1257/162055/20201130134010901_12-1257%20-1258%20Brief%20for%20State%20Petitioners.pdf> filed by Republicans<https://www.supremecourt.gov/DocketPDF/19/19-1257/162044/20201130134020712_To%20File%20-%20Hobbs%20-%20Opening%20Merits%20Brief.pdf> look for ways to drain Section 2 of all of its powers to be used in the vote denial context.

It is no wonder then that the brief<https://www.supremecourt.gov/DocketPDF/19/19-1257/166160/20210113145143562_19-1257%2019-1258%20bs%20Hobbs.pdf> filed by Arizona’s Democratic secretary of state makes arguments for part of the case to be dismissed on standing grounds and to reject the stingy Section 2 tests proposed by Republicans. A group of prominent election scholars filed a brief<https://www.supremecourt.gov/DocketPDF/19/19-1257/166801/20210120124709720_19-1257%20bsac%20voting%20rights%20scholars.pdf> asking for the petition to be dismissed as improvidently granted, leaving the lower court opinion in place without making new law. Voting<http://www.supremecourt.gov/DocketPDF/19/19-1257/166773/20210120105614902_Brnovich%20amicus%20FILING.pdf> rights<http://www.supremecourt.gov/DocketPDF/19/19-1257/166805/20210120123325783_19-1257%2019-1258%20Brnovich%20v%20Democratic%20National%20Committee%20Brief%20of%20Amici%20Curiae%20in%20Support%20of%20Respondents.pdf> amicus<https://www.supremecourt.gov/DocketPDF/19/19-1257/166789/20210120114308348_19-1257%2019-1258bsacNationalAssociationForTheAdvancementOfColoredPeople.pdf> briefs<https://www.supremecourt.gov/DocketPDF/19/19-1257/166702/20210119150239541_19-1257%20bsac%20LeadershipConferenceOnCivilAndHumanRights.pdf> argue for preservation of a meaningful Section 2 test for vote denial, and spend little time defending the 9th Circuit’s decision that these particular Arizona laws violate Section 2. Even the Biden administration, in a new letter<https://electionlawblog.org/?p=120875> to the court, does not defend the 9th Circuit’s result; it only seeks to distance itself from the Trump administration’s stingy test for vote denial under the Voting Rights Act.
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Posted in political parties<https://electionlawblog.org/?cat=25>, Supreme Court<https://electionlawblog.org/?cat=29>, Voting Rights Act<https://electionlawblog.org/?cat=15>


Breaking and Analysis: Supreme Court Refuses to Hear Cases Over Conduct of Election in Pennsylvania, With Justices Alito, Gorsuch and Thomas Dissenting: A Ticking Time Bomb To Go Off in a Later Case<https://electionlawblog.org/?p=120941>
Posted on February 22, 2021 6:39 am<https://electionlawblog.org/?p=120941> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find Justice Thomas’s opinion, dissenting from denial of cert. in two-Pennsylvania election cases, and Justice Alito’s separate dissent joined by Justice Gorsuch in the same cases, at this link <https://www.supremecourt.gov/orders/courtorders/022221zor_2cp3.pdf> beginning at page 25 of the pdf. The Court without noted dissent denied cert. in another PA case, the Kelly case. It takes four votes to agree to hear the case, and 5 to rule on the merits. There is no indication that Justice Barrett recused herself in consideration of the merits of these cases.

None of the dissenting Justices believed that these cases could somehow retroactively affect the outcome of the 2020 election. Indeed, they say it would not, but that the cases, while moot, should still have been heard because they present issues that will return to the federal courts. The main issue is the extent to which state courts, relying on state constitutions, may change rules for federal elections put in place by state legislatures. In the run-up to the 2020 elections, these three Justices, along with Justice Kavanaugh (who did not note a dissent in any of these cases today) expressed the view that the Constitution constrains the actions of state courts in such circumstances (viewing the legislature’s power as very broad).

This “independent state legislature” doctrine is a ticking time bomb, and it is an issue the Court is going to have to resolve, because these issues will return. As I explained back in November in a NY Times oped<https://www.nytimes.com/2020/11/23/opinion/trump-election-courts.html>:

The worst appears yet to come. In one of the lawsuits that remains technically alive at the Supreme Court out of Pennsylvania, Mr. Trump and his allies have advanced a muscular version<https://www.nytimes.com/2020/10/28/us/supreme-court-bush-gore-kavanaugh.html> of something that’s become known as the “independent state legislature” doctrine. Taken to its extreme, the doctrine says that state legislatures have complete authority to set election rules absent congressional override, and that their power to set election rules cannot be overcome even by state supreme courts applying right-to-vote provisions in state constitutions.

That’s the basis for Mr. Trump’s claim in the U.S. Supreme Court<https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20-542.html> that the Pennsylvania Supreme Court acted unconstitutionally in requiring the counting of mail-in ballots arriving up to three days after Election Day. (This is now a question for future elections because there are not enough ballots<https://www.politico.com/news/2020/11/10/pennsylvanias-top-election-officer-says-just-10-000-ballots-were-received-after-nov-3-435972> at stake to affect the 2020 count.) The doctrine also could be potentially violated by state and local election agencies even when they act under the Legislature’s authority to administer elections.

In the course of pre-election proceedings, Justices Samuel Alito,<https://www.supremecourt.gov/opinions/20pdf/20-542_i3dj.pdf> Neil Gorsuch<https://www.supremecourt.gov/opinions/20pdf/20a72_5hek.pdf>, Brett Kavanaugh<https://www.supremecourt.gov/opinions/20pdf/20a66_new_m6io.pdf> and Clarence Thomas<https://www.supremecourt.gov/opinions/20pdf/20-542_i3dj.pdf> issued or signed onto separate opinions endorsing the strong reading of this doctrine. The newest justice, Amy Coney Barrett, may well agree<https://nymag.com/intelligencer/2020/10/trumps-new-supreme-court-is-coming-for-the-next-elections.html>. And Chief Justice John Roberts, while not agreeing<https://www.nytimes.com/2020/10/28/us/supreme-court-bush-gore-kavanaugh.html> it was appropriate to apply this doctrine in these pre-election cases, was the lead dissenter<https://www.supremecourt.gov/opinions/14pdf/13-1314_3ea4.pdf> in a 2015 case out of Arizona advancing a similar theory about broad legislative power to set the rules for federal elections.

Either in the Pennsylvania case or in another, the court’s conservative majority could soon embrace a strong version of the independent state legislature doctrine. This could take state courts out of their essential role in protecting voting rights. It could potentially eliminate the ability of voters to use ballot measures to enact nonpartisan redistricting reform and other measures that apply to federal elections. It could give conservative courts looking for an excuse a reason to scuttle voter-protective rules enacted by state election boards.

Together, the Trump-related precedents mean that neither state nor federal courts are likely to be able to play a backstop role when Republican state legislatures pass new restrictive voting laws, and that efforts to get around these state legislative efforts are likely to fail as well. Although in theory Congress has the power<https://www.politico.com/news/magazine/2020/11/22/supreme-court-election-law-voting-rights-438844> to override state legislatures with voter-protective legislation for federal elections, it is hard to see any of that getting through the next Congress even if Democrats barely grab control by winning the upcoming pair of Senate runoffs in Georgia.

So why didn’t the Court go further in this case? My guess is that it is either the fact that the case is moot (and the Court would rather address the issue in the context of a live case, but with lower stakes) or because the Trump cases are somewhat radioactive at the Court. Given former President Trump’s continued false statements that the election was stolen, the case would become a further vehicle to argue that the election results were illegitimate. It would thrust the Court back in the spotlight on an issue the Justices showed repeatedly they wanted to avoid.

So the bottom line is that the independent state legislature doctrine hangs out there, as a ticking time bomb, waiting to go off in a future case.

[This post has been updated.]
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“Impeachment is over. But other efforts to reckon with Trump’s post-election chaos have just begun.”<https://electionlawblog.org/?p=120938>
Posted on February 21, 2021 5:42 pm<https://electionlawblog.org/?p=120938> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/election-claims-legal-sanctions/2021/02/21/4b051646-71fe-11eb-85fa-e0ccb3660358_story.html>

The state of Michigan and the city of Detroit have asked a federal judge to sanction attorneys who filed lawsuits that falsely alleged the November presidential vote was fraudulent, the first of several similar efforts expected around the country.

An Atlanta-area prosecutor has launched<https://www.washingtonpost.com/politics/in-wake-of-trump-calls-to-state-officials-georgia-prosecutors-open-criminal-investigation-into-efforts-to-subvert-election-results/2021/02/10/17709bd0-6bb3-11eb-9f80-3d7646ce1bc0_story.html?itid=lk_inline_manual_4> a criminal investigation into whether pressure that President Donald Trump and his allies put on state officials amounted to an illegal scheme to overturn the results of the election.

And defamation<https://www.washingtonpost.com/politics/dominion-voting-systems-giuliani-lawsuit/2021/01/25/b0fc3db4-5f14-11eb-afbe-9a11a127d146_story.html?itid=lk_inline_manual_5> lawsuits<https://www.washingtonpost.com/media/2021/02/04/smartmatic-fox-lawsuit/?itid=lk_inline_manual_5> have been filed against Trump’s allies — the start of what could be a flood of civil litigation related to false claims that the election was rigged and to the subsequent riot at the U.S. Capitol on Jan. 6.

Although Trump was acquitted<https://www.washingtonpost.com/politics/trump-acquitted-impeachment-riot/2021/02/13/dbf6b172-6e12-11eb-ba56-d7e2c8defa31_story.html?itid=lk_inline_manual_7> by the Senate on a charge that his rhetoric incited the deadly Capitol siege, public officials and private companies are pursuing a multi-front legal effort to hold him and his allies accountable in other ways. The actions target the former president and numerous others — including elected ­officials, media pundits and lawyers — who indulged and echoed his falsehoods that President Biden did not win the election.
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“Republican leader Steve Scalise refuses to admit Trump lost election to Biden”<https://electionlawblog.org/?p=120936>
Posted on February 21, 2021 5:40 pm<https://electionlawblog.org/?p=120936> by Rick Hasen<https://electionlawblog.org/?author=3>

The Guardian:<https://www.theguardian.com/us-news/2021/feb/21/steve-scalise-trump-biden-election-abc-jonathan-karl>

A senior Republican House leader has refused to admit Joe Biden won the 2020 presidential election against Donald Trump<https://www.theguardian.com/us-news/2021/feb/21/republican-donors-aim-move-party-away-trump-influence>.Growing number of Republican donors aim to prise party from Trump influenceRead more<https://www.theguardian.com/us-news/2021/feb/21/republican-donors-aim-move-party-away-trump-influence>

Congressman Steve Scalise of Louisiana, the House minority whip, appeared on ABC’s This Week more than three months after Biden won the electoral college 306-232 and the popular vote by more than 7m ballots and just over a month after the Democrat was sworn into office.

Trump now lives in Florida but he has refused to accept reality and concede, even after having the vast majority of cases mounted to pursue baseless claims of voter fraud laughed and thrown out of court.

He was impeached a second time for inciting the attack on the US Capitol on 6 January, having told supporters to “fight like hell” to overturn the election. Thanks to Republicans<https://www.theguardian.com/us-news/republicans> in the Senate, he was acquitted.

“Clear this up for me,” ABC host Jonathan Karl said to Scalise on Sunday. “Joe Biden won the election. He is the legitimate president of the United States. The election was not stolen, correct?”

“Look,” Scalise said, “Joe Biden’s the president. There were a few states that did not follow their state laws. That’s really the dispute that you’ve seen continue on.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“State GOP lawmakers propose flurry of voting restrictions to placate Trump supporters, spurring fears of a backlash”<https://electionlawblog.org/?p=120934>
Posted on February 21, 2021 5:38 pm<https://electionlawblog.org/?p=120934> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/gop-voting-restrictions/2021/02/19/d1fab224-72ca-11eb-85fa-e0ccb3660358_story.html>

GOP state lawmakers across the country have proposed a flurry of voting restrictions that they say are needed to restore confidence in U.S. elections, an effort intended to placate supporters of former president Donald Trump who believe his false claims that the 2020 outcome was rigged.

But the effort is dividing Republicans, some of whom are warning that it will tar the GOP as the party of voter suppression and give Democrats ammunition to mobilize their supporters ahead of the 2022 midterms.

The proposals include measures that would curtail eligibility to vote by mail and prohibit the use of ballot drop boxes. One bill in Georgia would block early voting on Sundays, which critics quickly labeled a flagrant attempt to thwart Souls to the Polls, the Democratic turnout effort that targets Black churchgoers on the final Sunday before an election.
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“Meet SG3: The Élite Legal Squad That Vowed to Safeguard the Election”<https://electionlawblog.org/?p=120932>
Posted on February 21, 2021 5:35 pm<https://electionlawblog.org/?p=120932> by Rick Hasen<https://electionlawblog.org/?author=3>

Jane Mayer<https://www.newyorker.com/magazine/2021/03/01/meet-sg3-the-elite-legal-squad-that-vowed-to-safeguard-the-election> for the New Yorker.
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“Mark Changed The Rules’: How Facebook Went Easy On Alex Jones And Other Right-Wing Figures<https://electionlawblog.org/?p=120930>
Posted on February 21, 2021 5:25 pm<https://electionlawblog.org/?p=120930> by Rick Hasen<https://electionlawblog.org/?author=3>

Deep dive<https://www.buzzfeednews.com/article/ryanmac/mark-zuckerberg-joel-kaplan-facebook-alex-jones> from BuzzFeed:

In April 2019, Facebook was preparing to ban one of the internet’s most notorious spreaders of misinformation and hate, Infowars founder Alex Jones. Then CEO Mark Zuckerberg personally intervened.

Jones had gained infamy<https://www.buzzfeednews.com/article/charliewarzel/alex-jones-will-never-stop-being-alex-jones> for claiming that the 2012 Sandy Hook elementary school massacre was a “giant hoax,” and that the teenage survivors of the 2018 Parkland shooting were “crisis actors.” But Facebook had found that he was also relentlessly spreading hate against various groups, including Muslims and trans people. That behavior qualified him for expulsion from the social network under the company’s policies for “dangerous individuals and organizations<https://www.facebook.com/communitystandards/dangerous_individuals_organizations>,” which required Facebook to also remove any content that expressed “praise or support” for them.

But Zuckerberg didn’t consider the Infowars founder to be a hate figure, according to a person familiar with the decision, so he overruled his own internal experts and opened a gaping loophole: Facebook would permanently ban Jones and his company — but would not touch posts of praise and support for them from other Facebook users. This meant that Jones’ legions of followers could continue to share his lies across the world’s largest social network.

“Mark personally didn’t like the punishment, so he changed the rules,” a former policy employee told BuzzFeed News, noting that the original rule had already been in use and represented the product of untold hours of work between multiple teams and experts.“Mark personally didn’t like the punishment, so he changed the rules.”

“That was the first time I experienced having to create a new category of policy to fit what Zuckerberg wanted. It’s somewhat demoralizing when we have established a policy and it’s gone through rigorous cycles. Like, what the fuck is that for?” said a second former policy employee who, like the first, asked not to be named so they could speak about internal matters.

“Mark called for a more nuanced policy and enforcement strategy,” Facebook spokesperson Andy Stone said of the Alex Jones decision, which also affected the bans of other extremist figures<https://www.buzzfeednews.com/article/ryanhatesthis/facebook-instagram-ban-jones-loomer-farrakhan-infowars-milo>.

Zuckerberg’s “more nuanced policy” set off a cascading effect, the two former employees said, which delayed the company’s efforts to remove right wing militant organizations such as the Oath Keepers, which were involved the Jan. 6 insurrection at the US Capitol. It is also a case study in Facebook’s willingness to change its rules to placate America’s right wing and avoid political backlash.

Internal documents obtained by BuzzFeed News and interviews with 14 current and former employees show how the company’s policy team — guided by Joel Kaplan, the vice president of global public policy, and Zuckerberg’s whims — has exerted outsize influence while obstructing content moderation decisions, stymieing product rollouts, and intervening on behalf of popular conservative figures who have violated Facebook’s rules.
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“Trump repeats election claims in interviews, is unchallenged”<https://electionlawblog.org/?p=120928>
Posted on February 19, 2021 1:03 pm<https://electionlawblog.org/?p=120928> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://apnews.com/article/donald-trump-entertainment-television-rush-limbaugh-elections-544bae924db6340423d937ba9525c1df?utm_source=Twitter&utm_campaign=SocialFlow&utm_medium=AP_Politics>

In the first television interviews of his post-presidency, Donald Trump repeated his false claims that the election was stolen from him 10 times — each instance unprompted and unchallenged.

Trump emerged this week for interviews with Fox News Channel, Newsmax and One America News Network tied to the death of Rush Limbaugh.

Each network actively appeals to Trump’s base conservative audience. And the way the interviews were conducted illustrates how difficult it may be to change the minds of supporters who believe the former president’s unfounded narrative.

Nearly a month after he left office, Trump drove his point home on each network:
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“Despite Security Concerns, Online Voting Advances”<https://electionlawblog.org/?p=120926>
Posted on February 19, 2021 7:42 am<https://electionlawblog.org/?p=120926> by Rick Hasen<https://electionlawblog.org/?author=3>

Stateline reports.<https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2021/02/17/despite-security-concerns-online-voting-advances?utm_campaign=02-17-2021+SD&utm_medium=email&utm_source=Pew>
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“Secretary of State Weber Appoints Dr. Abby K. Wood to FPPC”<https://electionlawblog.org/?p=120924>
Posted on February 19, 2021 7:38 am<https://electionlawblog.org/?p=120924> by Rick Hasen<https://electionlawblog.org/?author=3>

A great choice <https://www.sos.ca.gov/administration/news-releases-and-advisories/2021-news-releases-and-advisories/sw21005> for the FPPC. Congrats Abby!
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, election law biz<https://electionlawblog.org/?cat=51>


Bright Line Watch Expert Study on American Democracy<https://electionlawblog.org/?p=120922>
Posted on February 19, 2021 6:54 am<https://electionlawblog.org/?p=120922> by Rick Hasen<https://electionlawblog.org/?author=3>

From the summary<http://brightlinewatch.org/american-democracy-at-the-start-of-the-biden-presidency/>:

We asked our experts to assess 16 prominent reform proposals that aim to improve the quality of American democracy. Many of the proposals are drawn from the Our Common Purpose<https://www.amacad.org/ourcommonpurpose/report> project that was coordinated by the American Academy of Arts and Sciences<https://www.amacad.org/>. Each expert participant was asked to rate eight randomly drawn proposals. The full set of statements describing each reform is in the Appendix. The figure below shows expert support and opposition for each proposal.
[cid:image002.png at 01D708F1.CECE5C10]

Experts overwhelmingly support the proposed reforms. Of the 16 we tested, majorities of our expert respondents strongly supported 9 and strongly or moderately supported 15. The only proposal that did not garner majority support was compulsory voting.

The proposals fall into distinct categories. The largest group aims to increase voter participation, particularly among traditionally marginalized groups. Increasing flexibility on when and how ballots can be cast (95% support), guaranteeing suffrage rights to ex-felons (91%), same-day registration (91%), moving Election Day to a national holiday (87%), and pre-registering young voters (85%) all attracted support from more than four in five experts. By contrast, compulsory voting was supported by only 29% of experts, perhaps reflecting discomfort with the manner by which it tries to increase participation as well as recent research on the range of unintended consequences<https://www.cambridge.org/core/journals/political-analysis/article/compulsory-voting-can-increase-political-inequality-evidence-from-brazil/76BB8B11EA9A3FF75A1B0591C663B303> it can generate, including disillusionment with democracy<https://www.washingtonpost.com/news/monkey-cage/wp/2015/04/01/compulsory-voting-can-actually-weaken-support-for-democracy/> itself.

Another group of proposals seeks to reduce the influence of large individual and corporate campaign donors in American elections. These include increased transparency on the source of donations, providing public campaign funding, and amending the Constitution to impose greater restrictions on private spending. All these garner strong support among the experts (98%, 87%, and 88%, respectively).

A third set of proposals focuses on the rules for converting voter support into representation. At the top of this list is requiring states to establish non-partisan redistricting commissions to reduce partisan gerrymandering (95% support). Next, at 84%, is support for switching to a system in which the president is elected by direct popular vote instead of by the Electoral College.6<http://brightlinewatch.org/american-democracy-at-the-start-of-the-biden-presidency/#easy-footnote-bottom-6-2532> Also in this category are two electoral reforms, ranked-choice voting (78% support) and eliminating the requirement for Members of Congress to be elected from single-member districts (73%), both of which aim to open paths to electoral success for candidates other than those who can prevail in either Democratic or Republican primary contests.

In turn, enlarging the House of Representatives (64%) would increase the ratio of representatives to citizens, allowing for a more fine-grained mapping of representatives’ characteristics onto constituent preferences.

The last two proposals focus on the conduct of governance rather than elections. The first would limit the period for which federal judges could serve on the Supreme Court to 18 years (77% support), guaranteeing a vacancy on the Court every two years. This proposal seeks to reduce the stakes for high court appointments and thereby cool the attendant politics both during elections and in the day-to-day operation of the Senate. The next would eliminate the 60-vote requirement to suspend debate in the Senate, eliminating the filibuster and effectively returning the chamber to majority rule (74%). …

Threats to democracy

To further unpack the significance of these events, we asked experts to rate the severity of the threat they posed to democracy. Unsurprisingly, more than 90% of experts viewed the items that scored highest across the (ab)normality-and-importance dimensions as either a moderate, serious, or grave threat.
[cid:image003.png at 01D708F1.CECE5C10]

One item that our experts rated as abnormal was also one that few viewed as posing much of a threat to democracy: the House impeaching President Donald Trump for a second time. In total, 93% of our academic experts rated the two impeachments themselves as presenting little or no threat to U.S. democracy (7% sensed a moderate threat; none said it was a serious or grave threat). In the wake of Trump’s second acquittal, some prominent Republicans have voiced a different perspective, predicting that the impeachments would create a spiral of partisan retribution. For instance, Senator Lindsey Graham suggested<https://www.nytimes.com/2021/02/16/us/politics/impeachment-election-results-congress.html?smid=tw-share> that Vice-President Kamala Harris could be impeached if Republicans retake the House of Representatives for having expressed support for Black Lives Matter protesters in summer 2020.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D120922&title=Bright%20Line%20Watch%20Expert%20Study%20on%20American%20Democracy>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“GOP state lawmakers and election officials launch commission to examine voting laws”<https://electionlawblog.org/?p=120920>
Posted on February 18, 2021 7:41 pm<https://electionlawblog.org/?p=120920> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN:<https://www.cnn.com/2021/02/17/politics/republican-election-commission-voting-bills-2021/index.html?utm_content=2021-02-17T22:41:04&utm_source=twCNNp&utm_term=link&utm_medium=social>

Republican state legislators and secretaries of state on Wednesday announced the creation of a commission that will look at election laws amid a push to curb expanded access to voting.

The announcement from the Republican State Leadership Committee comes as GOP state lawmakers in key battlegrounds are now racing to roll back provisions <https://www.cnn.com/2021/02/02/politics/voting-rights-state-legislation/index.html> that expanded access to voting, citing constituent concerns about voting integrity after the election was marred by baseless allegations of voter fraud pushed by former President Donald Trump and other GOP officials. Those claims culminated in the deadly January 6 insurrection at the US Capitol.

The commission said in a statement that the goal is “to restore the American people’s confidence in the integrity of their free and fair elections” by “making it easier to vote and harder to cheat.”

Alabama Secretary of State John Merrill and Michigan state Sen. Ruth Johnson are leading the commission, which will work alongside state legislators as they push to make changes to election laws.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D120920&title=%E2%80%9CGOP%20state%20lawmakers%20and%20election%20officials%20launch%20commission%20to%20examine%20voting%20laws%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Trump Lawyers File Supplemental Brief in Supreme Court Urging Court to Hear Challenge to Wisconsin Election Case (Arguing Trump May Run for President Again So Case Falls in a Mootness Exception)<https://electionlawblog.org/?p=120916>
Posted on February 18, 2021 12:40 pm<https://electionlawblog.org/?p=120916> by Rick Hasen<https://electionlawblog.org/?author=3>

Brief:<https://www.supremecourt.gov/DocketPDF/20/20-883/168521/20210209115416022_Trump%20Supplemental%20Brief.1.pdf>

The narrow window in which legal disputes may be resolved following a presidential election weighs heavily in favor of applying the “capable of repetition” doctrine to resolve issues capable of reoccurring. Otherwise, non-legislative state actors may be emboldened in future presidential elections to make even more last-minute changes to state election laws contrary to the Electors Clause than occurred in this year’s election.

Second, Petitioner clearly satisfies the element that there is a reasonable expectation he may in the future be subject to the same action. There is no legal impediment to him running for re-election.4 National media and political pundits have highlighted Petitioner as a potential presidential candidate in 2024 and report that he would be the GOP frontrunner should he run again. This reporting is objectively based upon polling data and Petitioner’s access to the financial resources needed to run. 5 Therefore, Petitioner easily satisfies the second element of the capable of repetition standard.

Significantly, his petition raises important issues capable of repetition which could be critical in a subsequent presidential election….

Footnote 5 reads:

See, e.g., “Inauguration Day isn’t the end of the Trump era. It’s just the beginning.” USA Today, January 17, 2021 (“President Donald Trump would enjoy an almost certain early favorite status in an open 2024 Republican primary”), available at: https://www.usatoday.com/story/news/politics/2021/01/17/paleologos-polltrump-era-just-getting-started/4196345001/; “It’s still Trump’s party,” Axios, January 14, 2020 (“57% of Republicans said Trump should be the 2024 GOP candidate . . .[t]hat’s a formidable base for Trump, who also controls the $150 million+ he has raised for his super PAC since the election”) available at: https://www.axios.com/trump-republicans-mpeachment-support-10c11b10-2149-406fab6a-4a94db8d1226.html.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D120916&title=Trump%20Lawyers%20File%20Supplemental%20Brief%20in%20Supreme%20Court%20Urging%20Court%20to%20Hear%20Challenge%20to%20Wisconsin%20Election%20Case%20(Arguing%20Trump%20May%20Run%20for%20President%20Again%20So%20Case%20Falls%20in%20a%20Mootness%20Exception)>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


PA: “Allegheny County struggled to train poll workers and keep up with public questions during hectic November election”<https://electionlawblog.org/?p=120913>
Posted on February 18, 2021 8:39 am<https://electionlawblog.org/?p=120913> by Rick Hasen<https://electionlawblog.org/?author=3>

Public Source<https://www.publicsource.org/allegheny-county-election-2020-report-poll-worker-training-struggles/>:

Allegheny County’s administration of the November 2020 election suffered from inconsistent poll worker training and public communication, among other errors, a new report showed. The county has not outlined plans to address the problems.

“By putting an emphasis on systems, we wanted to make the county implicitly and explicitly more accountable,” said Juliet Zavon, the report’s primary author. “What is the level of competency required of poll workers in this county?”

The report was produced by the Elections Task Force, which Zavon described as an independent group of local residents with expertise in cybersecurity and election administration. The document describes an antiquated poll worker management system, a lack of training for many poll workers and insufficient means for the public to ask questions and learn about voting.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D120913&title=PA%3A%20%E2%80%9CAllegheny%20County%20struggled%20to%20train%20poll%20workers%20and%20keep%20up%20with%20public%20questions%20during%20hectic%20November%20election%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump campaign enlisted influencer marketing firm”<https://electionlawblog.org/?p=120911>
Posted on February 18, 2021 8:37 am<https://electionlawblog.org/?p=120911> by Rick Hasen<https://electionlawblog.org/?author=3>

Axios<https://www.axios.com/trump-campaign-social-media-influencer-firm-9f646905-ae17-4e5e-8036-9ffcffabfe58.html?utm_source=twitter&utm_medium=social&utm_campaign=editorial&utm_content=politics-trump>:

In the second half of 2020, Donald Trump’s reelection campaign shelled out seven figures to an influencer marketing business linked to his White House’s former chief digital officer.

Why it matters: The payments bought promotion from prominent conservative brands and social media personalities, showing how campaigns are exploring new, often more opaque digital advertising channels as large social media companies crack down<https://www.axios.com/facebook-resume-political-ad-ban-georgia-df566911-7b7a-4d42-94a2-37b42d44c67f.html> on political ads.

What’s new: Filings with the Federal Election Commission show the Trump campaign paid nearly $1.8 million during the second half of 2020 to Legendary Campaigns LLC for “online advertising.”
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D120911&title=%E2%80%9CTrump%20campaign%20enlisted%20influencer%20marketing%20firm%E2%80%9D>
Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>, cheap speech<https://electionlawblog.org/?cat=130>


“Is Democracy in Danger?” Jim Zirin Interviews Sam Issacharoff<https://electionlawblog.org/?p=120909>
Posted on February 18, 2021 8:35 am<https://electionlawblog.org/?p=120909> by Rick Hasen<https://electionlawblog.org/?author=3>

You can watch the video here.<https://www.youtube.com/watch?v=2ruv1ChFLDs&feature=youtu.be>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D120909&title=%E2%80%9CIs%20Democracy%20in%20Danger%3F%E2%80%9D%20Jim%20Zirin%20Interviews%20Sam%20Issacharoff>
Posted in Election Meltdown<https://electionlawblog.org/?cat=127>



--
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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