[EL] ELB News and Commentary 2/25/21

[Rick Hasen]

“Rightwing group nearly forced Wisconsin to purge thousands of eligible voters”<https://electionlawblog.org/?p=120973>
Posted on February 25, 2021 7:30 am<https://electionlawblog.org/?p=120973> by Rick Hasen<https://electionlawblog.org/?author=3>

The Guardian:<https://www.theguardian.com/us-news/2021/feb/25/wisconsin-voter-purge-data-will-2020-election>

A well-connected<https://projects.jsonline.com/news/2017/5/5/hacked-records-show-bradley-foundation-taking-wisconsin-model-national.html> conservative group in Wisconsin nearly succeeded in forcing the state to kick nearly 17,000 eligible voters off its rolls ahead of the 2020 election, new state data reveals.

The group, the Wisconsin Institute for Law and Liberty (Will), caused a national uproar<https://www.theguardian.com/us-news/2019/dec/18/wisconsin-rightwing-group-will-voter-purge> in late 2019 when it successfully convinced a county judge<https://www.theguardian.com/us-news/2019/dec/14/wisconsin-purge-voter-rolls-judge-ruling> to order the state to immediately remove more than 232,000 people Wisconsin suspected of moving homes from the state’s voter rolls. The state, relying on government records, had sent a postcard to all of those voters asking them to confirm their address, and Will sought to remove anyone who had not responded within 30 days.

Democrats on the commission refused to comply<https://www.wpr.org/judge-holds-elections-commissioners-contempt-wisconsins-voter-purge-case> with the order, believing that the underlying data wasn’t reliable, and wanted to give voters until April 2021 to confirm their address before they removed them. Appeals courts intervened and blocked the removals; the case is currently pending<https://www.wpr.org/wisconsin-supreme-court-hears-arguments-voter-purge-mail-ballot-cases> before the Wisconsin supreme court. There were still more than 71,000 voters still on the list at the end of January who did not respond to the mailer (152,524 people on the list updated their registration at a new address).

But new data<https://elections.wi.gov/sites/elections.wi.gov/files/2021-01/February%203%2C%202021%20Commission%20Materials%20-Open%20Session%201.29.pdf#page=33> from the Wisconsin Elections Commission shows how disastrous such a purge could have been. And the dispute underscores the way fights over how states remove people from their voter rolls – often called purging – has become a critical part of protecting voting rights in America.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Larry Tribe Calls Out Justice Thomas’s Trolling of Heather Gerken on Election Fraud in Recent Dissent<https://electionlawblog.org/?p=120971>
Posted on February 25, 2021 6:46 am<https://electionlawblog.org/?p=120971> by Rick Hasen<https://electionlawblog.org/?author=3>

Tribe<https://thehill.com/opinion/judiciary/540283-laurence-tribe-justice-thomas-is-out-of-order-on-2020-election> in The Hill:

Justice Thomas’s solo dissent is another matter altogether. The question at hand concerned only the relationship between a state legislature and the state constitution as construed by the state’s highest court. But Thomas seized the opportunity to rant against the nonexistent dangers of undetectable fraud and to suggest that the 2020 election — the most secure and reliable election in our nation’s history<https://www.cisa.gov/news/2020/11/12/joint-statement-elections-infrastructure-government-coordinating-council-election> — was clouded by uncertainty that only the U.S. Supreme Court could clarify. While he had to concede that the Pennsylvania Supreme Court’s decision “does not appear to have changed the outcome in any federal election,” his ominous warning that “we may not be so lucky in the future” stoked the same false and self-fulfilling narrative of fear and victimization that on Jan. 6 wrought death and destruction<https://www.nytimes.com/2021/01/09/us/capitol-rioters.html> on the epicenter of democracy.

Moreover, Justice Thomas shamelessly distorted the words of Yale Law School’s dean, the distinguished election law scholar Professor Heather Gerken. In the midst of Republicans’ push to pass voter ID laws that ostensibly secured elections but actually disenfranchised Democratic voters, Dean Gerken had observed<https://www.nytimes.com/2012/10/07/us/politics/as-more-vote-by-mail-faulty-ballots-could-impact-elections.html> that anyone bent on pulling off voter fraud on a scale large enough to swing an election would be more likely to “steal some absentee ballots or stuff a ballot box or bribe an election administrator or fiddle with an electronic voting machine.” So here’s the kicker: Gerken’s point was simply that polling places are secure, so they don’t need extra “security” from voter-suppressing ID laws. Her point was not, as Justice Thomas asserted, that mail-in voting is insecure. Turning Dean Gerken’s point upside-down, Justice Thomas cited it for the altogether different and entirely unsubstantiated proposition that voting by mail is unacceptably vulnerable to fraud. Even if that inference could be drawn – which it can’t – it had nothing at all to do with the case before the Court.

Justice Thomas’s opinion is particularly egregious because those most aggrieved can hardly speak up. Joe Biden’s need to govern makes it counterproductive to engage in unending debate about the legitimacy of the 2020 election. Dean Gerken’s role as head of one of our great law schools makes it awkward for her to chastise that school’s own distinguished alumnus, Justice Thomas, for his intellectual dishonesty.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>, Supreme Court<https://electionlawblog.org/?cat=29>


Georgia Secretary of State Raffensperger Compares Stacey Abrams Complaints About Voting Machine Security to Trump’s Attack on Election Integrity, Cites Daily Wire Story on Abrams’ Group’s Support for Group Promoting Voting Technology Integrity<https://electionlawblog.org/?p=120969>
Posted on February 25, 2021 6:42 am<https://electionlawblog.org/?p=120969> by Rick Hasen<https://electionlawblog.org/?author=3>

‘This<https://sos.ga.gov/index.php/elections/breaking_stacey_abrams_funded_group_that_pushed_voting_machine_disinformation_in_georgia> is so disappointing to see.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Is It Possible to Have Safe and Equitable Elections?”<https://electionlawblog.org/?p=120967>
Posted on February 24, 2021 10:38 am<https://electionlawblog.org/?p=120967> by Rick Hasen<https://electionlawblog.org/?author=3>

New oped<https://thehill.com/opinion/campaign/540216-it-is-possible-to-have-safe-and-equitable-elections> by Laura Albert and Barry Burden in The Hill.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Persily and Stewart: “The Miracle and Tragedy of the 2020 Election”<https://electionlawblog.org/?p=120965>
Posted on February 24, 2021 10:35 am<https://electionlawblog.org/?p=120965> by Rick Hasen<https://electionlawblog.org/?author=3>

Can’t wait to read this <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3790904> from Nate Persily and Charles Stewart (forthcoming in the Journal of Democracy). Abstract:

The 2020 election was both a miracle and a tragedy. In the midst of a pandemic, election administrators pulled off a safe, secure, and professional election. Still, lies of voter fraud have cemented in the minds of tens of millions of Americans that the election was rigged.

As the first wave of the pandemic overtook the nation right as the presidential election season was beginning, most states responded by delaying their primaries and maximizing opportunities to vote by mail. We review how the quick actions of many states led to salvaging of the primary season, but also led to two cautionary tales, from Wisconsin and New York, that illustrated the disasters that could befall both mail and in-person voters if the nation did not act quickly. We recount the combination of actions taken by governors, state legislators, health officials, judges, and civil society to adapt election administration to the exigent realities of the pandemic and to cope with the logistical challenges state and local election officials faced.

We discuss metrics of success in the adaptations that took place — record-high turnout, widespread voter satisfaction, a doubling of mail voting without a concomitant increase in problems often associated with absentee ballots, and the recruitment of hundreds of thousands of new poll workers. We also explore how the competing narrative of dysfunction and a “stolen election,” propagated by President Trump and his supporters, led not only to the insurrection at the Capitol on January 1, but also to a historically deep chasm at the mass level between partisans in their trust of the election process and outcome. We conclude by noting that many states will be considering legislation that re-litigates the election by addressing non-problems, rather than building on the triumphs of the election.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Election officials defended the 2020 vote. In 2022, they’ll have to defend themselves.”<https://electionlawblog.org/?p=120963>
Posted on February 24, 2021 10:33 am<https://electionlawblog.org/?p=120963> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2021/02/23/2022-elections-secretary-of-state-471273?nname=playbook-pm&nid=0000015a-dd3e-d536-a37b-dd7fd8af0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=964328>

Donald Trump transformed these once-obscure officials into either the enemies — or the saviors, as most would have it — of American democracy. Now, campaigns for secretary of state are becoming the next major arena of nationwide political combat.

Sitting secretaries and political groups are preparing for a flood of candidates, money and attention into campaigns for the newly prominent positions in 2022. Voting rules have become a bigger cause for both political parties, while coronavirus-fueled election changes combined with Trump’s conspiracy theories to turn secretaries of state into pivotal characters in last year’s presidential election.

The biggest battleground is likely to be Georgia, where Republican Secretary of State Brad Raffensperger is set to face dual challenges after Trump targeted him for certifying President Joe Biden’s victory there. Democrats are eager to take control of state election administration in Georgia, which has for years been at the center of national debates about voter suppression. But first, Raffensperger may see Trump endorse a primary opponent out of retribution for perceived slights.

“This will be a true test of where the Republican Party is going,” said Jordan Fuchs, who ran Raffensperger’s 2018 campaign and is now deputy secretary of state in Georgia. “There’s some growing pains now that Trump is not the leader of the Republican Party. And these primary elections are going to be defining for us for a very long time.”

Twenty-six states will have secretary of state elections next year, including five of the 10 closest states in the 2020 presidential election, and incumbents from both parties are preparing for tough battles. Michigan Secretary of State Jocelyn Benson, a Democrat up for reelection in 2022, said she will likely have to raise more money than before — but she expects it to be easier now.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Next front in gerrymandering wars will be whom to count”<https://electionlawblog.org/?p=120961>
Posted on February 24, 2021 7:11 am<https://electionlawblog.org/?p=120961> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

Jowei Chen and I have written this column<https://www.washingtonpost.com/outlook/2021/02/24/gerrymandering-count-people-adults/> for the Washington Post, exploring the implications of changing the unit of apportionment from all people to adult citizens only. The op-ed is based on our forthcoming article<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3779342> in the California Law Review.

The gerrymandering wars are about to resume. Over the next year, every state in the country will have to redraw its congressional and legislative districts. In anticipation of redistricting, Republicans are eyeing a new tactic: For decades, states have equalized the numbers of people their districts contain. But the GOP is now pushing<https://www.reuters.com/article/us-usa-census-redistricting-insight/republicans-want-census-data-on-citizenship-for-redistricting-idUSKCN1RK18D> to equalize districts’ citizen voting-age populations instead. Under this approach, noncitizens and children would be invisible for remapping purposes. Only adult citizens would count. . . .

To find out what would happen if states made the switch, we instructed a computer algorithm to generate millions of statehouse maps for the 10 states with the smallest proportions of adult citizens. The algorithm incorporated line-drawing rules like compactness, respect for county boundaries, and compliance with the Voting Rights Act. But half the maps equalized people, while the other half did conservatives’ bidding by equalizing adult citizens instead.

Our results for minority representation were striking. Across all 10 states, the fraction of districts where minority voters can elect their preferred candidates (usually either Black or Latino, depending on the district’s population) fell by an average of three percentage points when the apportionment base changed from people to adult citizens. In major states such as Arizona, Florida, New York and Texas, this decline exceeded six percentage points. In Texas specifically, roughly 10 minority districts disappeared between the equal-person and the equal-adult-citizen simulations. These districts’ elimination would undo overnight a generation of slow diversification in the Texas Legislature, rendering the body unreflective of the Texas population.

Our partisan findings, however, were considerably less dramatic. Across all 10 states, the share of Republican districts rose by an average of just one percentage point when we switched the unit of apportionment from people to adult citizens. True, Republicans benefited more in a few states, Texas in particular. But in most states we studied, including Arizona, California, Georgia, Illinois and New York, there was effectively no difference in the parties’ fortunes between the equal-person and the equal-adult-citizen simulations. This was because many of the minority districts that vanished from one simulation set to the other remained Democratic. They would typically be represented by non-White Democrats beforehand, and by White Democrats afterward.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>



“Activist shareholders pressing companies to disclose more of their political activity after Capitol attack”<https://electionlawblog.org/?p=120958>
Posted on February 24, 2021 6:42 am<https://electionlawblog.org/?p=120958> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/business/2021/02/23/corporate-political-giving-capitol-attack/>

A day after JPMorgan Chase announced it would freeze its political contributions in the wake of the Jan. 6 attack on the U.S. Capitol, the nation’s largest bank made an unpublicized move indicating it may not be eager to overhaul how it does business in Washington.

The company wrote<https://www.sec.gov/divisions/corpfin/cf-noaction/14a-8/2021/ctwjpmorgan011121-14a8-incoming.pdf> the Securities and Exchange Commission asking the agency to block activist investors from forcing the bank to provide a fuller accounting of its political spending. Specifically, the shareholders, organized by social impact investment firm Rhia Ventures, want JPMorgan to report on how its campaign giving squares with its stated commitment to a lofty set of values.

The investors say the mob attack highlights the urgency of their cause. “This is the most extreme example of why companies need to dig deeper, articulate their values, then put their money where their mouths are,” said Shelley Alpern, director of shareholder advocacy for Rhia Ventures. “It’s not outrageous to ask companies to stay true to those values, so they not only do less collateral damage to society but suffer less blowback when contradictions are turned up and exposed.”
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“Internal emails reveal Antrim Co. response to voting problem that fueled conspiracies”<https://electionlawblog.org/?p=120956>
Posted on February 23, 2021 4:25 pm<https://electionlawblog.org/?p=120956> by Rick Hasen<https://electionlawblog.org/?author=3>

Craig Mauger<https://www.detroitnews.com/story/news/politics/2021/02/23/emails-reveal-antrims-response-problem-fueled-conspiracies/4555730001/> for the Detroit News.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Dissent by Justice Thomas in election case draws fire for revisiting baseless Trump fraud claims”<https://electionlawblog.org/?p=120954>
Posted on February 22, 2021 3:36 pm<https://electionlawblog.org/?p=120954> by Rick Hasen<https://electionlawblog.org/?author=3>

John Fritze<https://www.usatoday.com/story/news/politics/2021/02/22/supreme-court-justice-clarence-thomas-renews-election-fraud-debate/4540788001/> for USA Today.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>


Matt Masterson: “For trusted elections, we should model 2020”<https://electionlawblog.org/?p=120952>
Posted on February 22, 2021 12:11 pm<https://electionlawblog.org/?p=120952> by Rick Hasen<https://electionlawblog.org/?author=3>

New oped in The Hill:<https://thehill.com/opinion/white-house/539600-for-trusted-elections-we-should-model-2020?rl=1#.YDKz4NbTXKU.twitter>

In the wake of the horrific Jan. 6 attack on the U.S. Capitol — which was fueled by months of lies and conspiracy theories<https://www.npr.org/2021/02/08/965342252/timeline-what-trump-told-supporters-for-months-before-they-attacked> — election officials are left to pick up the pieces of our fractured democracy and begin to rebuild trust in our elections. They cannot and should not be asked to do this alone.

It took a whole of government effort to secure the 2020 election<https://www.pbs.org/newshour/politics/how-the-u-s-is-trying-to-improve-election-security-ahead-of-2020> and it will take that same level of investment to restore confidence in future elections. President Biden<https://thehill.com/people/joe-biden> and his administration can play a critical role in this work.

First, the new administration must double down on support to state and most importantly, local election officials. These heroes are being asked to defend their systems against threats from criminal actors<https://www.reuters.com/article/us-usa-election-cyber/u-s-warns-foreign-actors-aim-to-sow-doubts-over-mail-in-voting-idUSKCN26D34C>, nation states<https://www.npr.org/2020/10/22/926825699/ongoing-russian-cyberattacks-are-targeting-u-s-election-systems-feds-say> and purveyors of disinformation<https://www.npr.org/2020/10/24/927300432/robocalls-rumors-and-emails-last-minute-election-disinformation-floods-voters>. …

Second, the Biden administration should quickly push for the replacement of any voting system that does not produce a paper record of the vote. Election officials have made steady progress in this area, with more than 92 percent<https://www.nytimes.com/2020/11/12/us/politics/election-officials-contradict-trump.html> of votes cast on a verifiable paper ballot in the 2020 election. This improvement proved to be vital in the days following the election, when lies about hacked voting machines<https://apnews.com/article/39dad9d39a7533efe06e0774615a6d05> began to spread among the public. In response to these lies, the state of Georgia took the unprecedented step of hand counting<https://sos.ga.gov/index.php/elections/historic_first_statewide_audit_of_paper_ballots_upholds_result_of_presidential_race> more than five million ballots to verify the accuracy of the machine-counted results. Georgia would not have been able to do this as recently as 2018<https://www.npr.org/2018/09/18/649121322/georgia-will-use-electronic-voting-machines-this-fall-as-paper-ballot-case-falte>, when the state used completely paperless systems that produced no independently auditable record. ….

Finally, the administration should work with the nation’s governors, secretaries of state, election directors, mayors and county officials to make meaningful financial investments in state and local IT security. An investment in local IT security and resources is an investment in election security.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“U.S. Supreme Court declines to hear Trump’s election challenge in Wisconsin, and the attorney in another case could be sanctioned”<https://electionlawblog.org/?p=120950>
Posted on February 22, 2021 12:09 pm<https://electionlawblog.org/?p=120950> by Rick Hasen<https://electionlawblog.org/?author=3>

The Milwaukee Journal-Sentinel reports.<https://www.jsonline.com/story/news/politics/elections/2021/02/22/supreme-court-declines-hear-trump-election-challenge-wisconsin/4540113001/>
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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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