[EL] ELB News and Commentary 6/4/21

[Rick Hasen]

“Analysis: How the Supreme Court has tilted election law to favor the Republican Party”<https://electionlawblog.org/?p=122472>
Posted on June 4, 2021 7:57 am<https://electionlawblog.org/?p=122472> by Rick Hasen<https://electionlawblog.org/?author=3>

David Savage<https://www.latimes.com/politics/story/2021-06-04/how-supreme-court-tilted-election-law-favor-gop> for the LAT.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>


Bauer and Ginsberg: “State Election Officials Are Under Attack. We Will Defend Them.”<https://electionlawblog.org/?p=122470>
Posted on June 4, 2021 7:53 am<https://electionlawblog.org/?p=122470> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT oped<https://www.nytimes.com/2021/06/04/opinion/republican-state-laws-election-officials.html?smid=tw-share> by Bob Bauer and Ben Ginsberg:

Tucked into many of the election laws Republicans are pushing or enacting in states around the country are pernicious provisions<https://www.nytimes.com/2021/05/15/us/politics/republican-voting-bills-poll-workers.html> threatening punishment of elections officials and workers for just doing their jobs.

Laws like those already passed in Republican-controlled states like Georgia and Iowa, no matter their stated intent, will be used as a weapon of intimidation aimed at the people, many of them volunteers, charged with running fair elections at the local and state levels. By subjecting them to invasive, politically motivated control by a state legislative majority, these provisions shift the last word in elections from the pros to the pols. This is a serious attack on the crucial norm that our elections should be run on a professional, nonpartisan basis — and it is deeply wrong.

It is so wrong that having once worked together across the partisan divide as co-chairs of the 2013-14 Presidential Commission on Election Administration, we have decided to come together again to mobilize the defense of election officials who may come under siege from these new laws.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, The Voting Wars<https://electionlawblog.org/?cat=60>


If You Get a Daily Election Law Blog Email from Me via Feedburner, Watch for the Change to Feedblitz<https://electionlawblog.org/?p=122468>
Posted on June 4, 2021 7:49 am<https://electionlawblog.org/?p=122468> by Rick Hasen<https://electionlawblog.org/?author=3>

Over 2,000 people get a daily email from me generated by Google’s Feedburner service that includes links to ELB content sent out over the last 24 hours. Google has announced that it will no longer be supporting Feedburner, so we are transitioning all the subscribers over to a different service, Feedblitz. It should be seemless for users (except for an email coming from a different email address), and users can unsubscribe at any time.

Once Feedblitz is up and running I’ll put up a new post for a link to those who would like to get content in this way.

Other, bigger changes are coming to ELB July 1, so stay tuned!
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Facebook keeps touting its labels, but data suggests labels actually amplified Trump’s misinformation”<https://electionlawblog.org/?p=122466>
Posted on June 4, 2021 7:45 am<https://electionlawblog.org/?p=122466> by Rick Hasen<https://electionlawblog.org/?author=3>

Media Matters<https://www.mediamatters.org/facebook/facebook-keeps-touting-its-labels-data-suggests-labels-actually-amplified-trumps>:

Facebook keeps touting its labels as a proactive response to misinformation spread on the platform, even though internal and external data shows the labels are ineffective and the platform’s application of them is inconsistent at best. In fact, Media Matters found that the average number of interactions per post on former President Donald Trump’s labeled posts is more than double that of his posts overall, and posts containing his misinformation are still spreading on the platform even though he is suspended from it for now.

In our latest study, Media Matters analyzed former President Trump’s 6,081 posts that he created between January 1, 2020, and January 6, 2021. Key findings include:
·         Facebook labeled at least 506 Trump posts between January 1, 2020, and January 6, 2021. These posts earned over 205.8 million interactions, or an average of roughly 407,000 interactions per post. Comparatively, all of Trump’s posts during this time earned over 927 million interactions, or an average of roughly 152,000 interactions per post.
·         Facebook labeled 147 of Trump’s 868 posts that cited right-wing media outlets. These 147 posts earned over 42 million interactions, or an average of roughly 291,000 interactions per post.
·         Notably, 127 — or over 86% — of Trump’s labeled posts citing right-wing media were related to election integrity, five specifically mentioned “Stop the Steal,” and two were related to COVID-19. These posts earned more average interactions per post than Trump’s posts overall and Trump’s posts citing right-wing media.
·         Even as Trump is suspended from Facebook, the platform is failing to consistently label his election misinformation. Facebook labeled at least two posts that promoted Trump’s May 13 statement, originally posted to his blog, as “false,” but dozens of other posts with images or text from the statement remain on Facebook.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>


“Pence says he and Trump may never ‘see eye to eye’ on Jan. 6 insurrection”<https://electionlawblog.org/?p=122464>
Posted on June 4, 2021 7:43 am<https://electionlawblog.org/?p=122464> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2021/06/03/pence-trump-jan6-insurrection-491861?nname=playbook&nid=0000014f-1646-d88f-a1cf-5f46b7bd0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=630318>

In his second public address since leaving office, former Vice President Mike Pence on Thursday put a little space between himself and his ex-boss, saying he and former President Donald Trump might never “see eye to eye” on the Jan. 6 insurrection.

Pence called it a “dark day in the history of the United States” and thanked the U.S. Capitol Police and other law enforcement for quelling the violence. He didn’t mention the insurrection in his first post-vice-presidency speech, in South Carolina in April.

“And that same day, we reconvened the Congress and did our duty under the Constitution and the laws of the United States,” Pence said on Thursday at the Hillsborough County Republican Committee’s annual Lincoln-Reagan Awards Dinner in Manchester, N.H., referring to the counting of Electoral College votes. “You know, President Trump and I have spoken many times since we left office. And I don’t know if we’ll ever see eye to eye on that day, but I will always be proud of what we accomplished for the American people over the last four years.”

He then accused Democrats of using the Capitol riot to divide the country and distract Americans from the Biden administration’s agenda.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Facebook Plans to End Hands-Off Approach to Politicians’ Posts”<https://electionlawblog.org/?p=122462>
Posted on June 4, 2021 7:39 am<https://electionlawblog.org/?p=122462> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/06/03/technology/facebook-politicians-posts.html?campaign_id=9&emc=edit_nn_20210604&instance_id=32233&nl=the-morning%C2%AEi_id=117282&segment_id=59837&te=1&user_id=73afc232b34fb48763946ae71c55eb73>

Facebook plans to announce on Friday that it will no longer keep posts by politicians up on its site by default if their speech breaks its rules, said two people with knowledge of the company’s plans, reversing how it has allowed posts from political figures to remain untouched on the social network.

The change, which is tied to Facebook’s decision to bar former President Donald J. Trump from its site, is a retreat from a policy introduced less than two years ago<https://about.fb.com/news/2019/09/elections-and-political-speech/>, when the company said speech from politicians was newsworthy and should not be policed.

Under the change, politicians’ posts will no longer be presumed newsworthy, said the people with knowledge of the plans, who spoke on the condition of anonymity. Politicians will be subject to Facebook’s content guidelines that prohibit harassment, discrimination or other harmful speech, they said.

If Facebook does decide speech from politicians is newsworthy, it can be exempt from being pulled down, under a standard the company has used since at least 2016<https://about.fb.com/news/2016/10/input-from-community-and-partners-on-our-community-standards/>. Starting on Friday, the people with knowledge of the plans said, Facebook will disclose when it has applied the newsworthiness clause to rule-breaking posts.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Senator Ted Cruz Wins Legal Challenge Over Campaign Finance Rules”<https://electionlawblog.org/?p=122460>
Posted on June 4, 2021 7:38 am<https://electionlawblog.org/?p=122460> by Rick Hasen<https://electionlawblog.org/?author=3>

CNS:<https://www.courthousenews.com/senator-ted-cruz-wins-legal-challenge-over-campaign-finance-rules/>

A federal court in Washington D.C. ruled in favor of Texas Republican Senator Ted Cruz in a lawsuit against the Federal Election Commission challenging a cap on how much money candidates can use after an election to reimburse themselves for pre-election loans.

A three-judge panel of the U.S. District Court for the District of Columbia unanimously rejected arguments from the FEC that the rule is necessary to prevent quid pro quo corruption, ruling instead that the cap unfairly restricts candidates’ free speech.

“A candidate’s loan to his campaign is an expenditure that may be used for expressive acts. Such expressive acts are burdened when a candidate is inhibited from making a personal loan, or incurring one, out of concern that she will be left holding the bag on any unpaid campaign debt,” U.S. District Judge Neomi Rao, a Trump appointee, wrote<https://www.courthousenews.com/wp-content/uploads/2021/06/TedCruz.pdf> on behalf of the panel.

Rao was joined in the decision by U.S. District Judges Amit Mehta, an Obama appointee, and Timothy Kelly, a Trump appointee.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“Ballot images made public in Georgia after heated election”<https://electionlawblog.org/?p=122458>
Posted on June 4, 2021 7:18 am<https://electionlawblog.org/?p=122458> by Rick Hasen<https://electionlawblog.org/?author=3>

AJC:<https://www.ajc.com/politics/ballot-images-made-public-in-georgia-after-heated-election/EXDCNODM4RCOXB4ANZGWW7D6DA/?utm_source=Iterable&utm_medium=email&utm_campaign=campaign_2422910>

Don’t trust the results of the election? For the first time, Georgia voters can check ballots for themselves.

Digital images of ballots are now public records in Georgia, available for anyone to see upon request and payment of a fee to county election offices.

A batch of 145,000 Fulton County absentee ballots cast in November’s election shows a picture of every ballot and bubbled-in oval, followed by a printed page verifying how voting machines counted each race. The Atlanta Journal-Constitution obtained the ballot images by paying a $240 records retrieval fee to Fulton County.

There are many possibilities for how these ballot images could be used — or abused.

Concerned citizens could recount ballots themselves. Candidates could identify voting patterns, such as split tickets among Democrats and Republicans. Those who believe an election was stolen<https://www.ajc.com/politics/ballot-inspection-seeks-elusive-proof-of-fraud-in-georgia-election/OEQEOPIY4FDC3KPN3W47MNMKEU/> could look for counting irregularities, highlighting potential errors.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Trump’s grip on GOP sparks fears about democratic process”<https://electionlawblog.org/?p=122456>
Posted on June 3, 2021 3:45 pm<https://electionlawblog.org/?p=122456> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://apnews.com/article/michael-pence-donald-trump-capitol-siege-campaign-2016-election-2020-5af20be3c4533a8a34763e82341eaca1>:

Seven months after Election Day, former President Donald Trump’s supporters are still auditing ballots in Arizona’s largest county and may revive legislation that would make it easier for judges in Texas to overturn election results.

In Georgia, meanwhile, the Republican-controlled state legislature passed a bill allowing it to appoint a board that can replace election officials. Trump loyalists who falsely insist he won the 2020 election are running for top election offices in several swing states. And after a pro-Trump mob staged a violent insurrection at the U.S. Capitol to halt the certification of Democrat Joe Biden’s election victory, Republicans banded together to block an independent investigation of the riot, shielding Trump from additional scrutiny of one of the darkest days of his administration.

To democracy advocates, Democrats and others, the persistence of the GOP’s election denial shows how the Republican Party is increasingly open to bucking democratic norms, particularly the bipartisan respect traditionally afforded to election results even after a bitter campaign. That’s raising the prospect that if the GOP gains power in next year’s midterms, the party may take the extraordinary step of refusing to certify future elections.

“We have to face the facts that Republicans — obviously with exceptions — have become an authoritarian party,” said Steven Levitsky, a Harvard political scientist and co-author of the book “How Democracies Die.” “It’s impossible to sustain a democracy in a two-party system when one of the parties is not willing to play by the rules of the game.”

Republicans have already offered a preview of how they might operate. On Jan. 6, the day of the Capitol riot, a majority of House Republicans voted to overturn Biden’s victories in Arizona and Pennsylvania. Biden still would have won an Electoral College victory without those states, but the move signaled how the traditionally ceremonial congressional certification process could be weaponized.

For his part, Trump continues to push Republicans to embrace his election lies. He’s criticized his former vice president, Mike Pence, for fulfilling his constitutional duty to preside over the congressional certification of Biden’s victory. And Trump has gone a step further<https://apnews.com/article/michael-pence-donald-trump-campaign-2016-election-2020-government-and-politics-7306533132e2fa9aa0e9b5da60db9420> recently by giving credence to a bizarre conspiracy theory that he could somehow be reinstated into the presidency in August, according to a longtime Trump ally who spoke on condition of anonymity to discuss private conversations.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


“New Hampshire Election Audit, part 1”<https://electionlawblog.org/?p=122454>
Posted on June 3, 2021 2:21 pm<https://electionlawblog.org/?p=122454> by Rick Hasen<https://electionlawblog.org/?author=3>

Andrew Appel:<https://freedom-to-tinker.com/2021/06/02/new-hampshire-election-audit-part-1/>

Based on preliminary reports published by the team of experts that New Hampshire engaged to examine an election discrepancy, it appears that a buildup of dust in the read heads of optical-scan voting machines (possibly over several years of use) can cause paper-fold lines in absentee ballots to be interpreted as votes. In a local contest in one town, preliminary reports suggest this caused four Republican candidates for State Representative to be deprived of about 300 votes each. That didn’t change the outcome of the election–the Republicans won anyway–but it shows that New Hampshire (and other states) may need to maintain the accuracy of their optical-scan voting machines by paying attention to three issues:

Routine risk-limiting audits to detect inaccuracies if/when they occur.

Clean the dust out of optical-scan read heads regularly; pay attention to the calibration of the optical-scan machines.

Make sure that the machines that automatically fold absentee ballots (before mailing them to voters) don’t put the fold lines over vote-target ovals. (Same for election workers who fold ballots by hand.)
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The GOP’s ‘Off the Rails’ March Toward Authoritarianism Has Historians Worried”<https://electionlawblog.org/?p=122451>
Posted on June 3, 2021 10:57 am<https://electionlawblog.org/?p=122451> by Rick Hasen<https://electionlawblog.org/?author=3>

Ben Jacobs<https://www.vice.com/en/article/k78znw/the-gops-off-the-rails-march-toward-authoritarianism-has-historians-worried> for Vice:

Her concern is echoed by an increasing number of scholars who study American history and the rise of authoritarianism around the globe. While republics are often fragile, they see the United States in a unique position as a mature democracy at the point of fracturing. As Harvard political scientist Steven Levitsky, co-author of “How Democracies Die<https://www.amazon.com/How-Democracies-Die-Steven-Levitsky/dp/1524762938>,” a study of the collapse of democracies across the world, put it bluntly, “I think we are headed for a crisis.” And, many scholars say, that fracturing is without historical precedent.

“A mainstream democratic party, one of the major parties in a country, going fully off the rails . . . it’s hard to find analogues,” said Levitsky’s co-author, Daniel Ziblatt, also at Harvard. But Ziblatt and others were united in where to place the blame: “The radicalization and increasing authoritarianism of the Republican Party.”

While Ziblatt’s book argued that American democracy is not inherently exceptional and the norms that hold it together were rendered vulnerable by the rise of former President Donald Trump, much of its assumptions seem almost naive after January 6.

“The underlying assumption when we wrote [the book] was that an important, even a dominant faction of the Republican Party was committed to the democratic rules of the game, and that is no longer the case,” said Levitsky.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


WaPo: Postmaster DeJoy Being Investigated for Making Illegal Conduit Campaign Contributions<https://electionlawblog.org/?p=122449>
Posted on June 3, 2021 9:30 am<https://electionlawblog.org/?p=122449> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/national-security/louis-dejoy-fbi-investigation/2021/06/03/4e24e122-c3d3-11eb-93f5-ee9558eecf4b_story.html>:

The FBI is investigating Postmaster General Louis DeJoy in connection with campaign fundraising activity involving his former business, according to people familiar with the matter and a spokesman for DeJoy.

FBI agents in recent weeks interviewed current and former employees of DeJoy and the business, asking questions about political contributions and company activities, these people said. Prosecutors also issued a subpoena to DeJoy himself for information, one of the people said.

That person, like others, spoke on the condition of anonymity to describe an ongoing and politically sensitive investigation.

Mark Corallo, a DeJoy spokesman, confirmed the investigation in a statement, but insisted DeJoy had not knowingly violated any laws.

“Mr. DeJoy has learned that the Department of Justice is investigating campaign contributions made by employees who worked for him when he was in the private sector,” Corallo said. “He has always been scrupulous in his adherence to the campaign contribution laws and has never knowingly violated them.”…

In early September, The Washington Post published an extensive examination<https://www.washingtonpost.com/investigations/louis-dejoy-campaign-contributions/2020/09/06/1187bc2c-e3fe-11ea-8181-606e603bb1c4_story.html?itid=lk_inline_manual_19> of how employees at DeJoy’s former company, North Carolina-based New Breed Logistics, alleged they were pressured by DeJoy or his aides to attend political fundraisers or make contributions to Republican candidates, and then were paid back through bonuses.

Such reimbursements could run afoul of state or federal laws, which prohibit so-called straw-donor schemes meant to allow wealthy donors to evade individual contribution limits and obscure the source of a candidate’s money. In April, though, Wake County, N.C., District Attorney Lorrin Freeman (D) said she would not pursue an investigation of DeJoy, and that the matter was better left to federal authorities.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Push polls increase false memories for fake news stories”<https://electionlawblog.org/?p=122447>
Posted on June 3, 2021 9:09 am<https://electionlawblog.org/?p=122447> by Rick Hasen<https://electionlawblog.org/?author=3>

New article<https://www.tandfonline.com/doi/full/10.1080/09658211.2021.1934033> in the journal Memory by Gillian Murphy<https://www.tandfonline.com/author/Murphy%2C+Gillian>, Laura Lynch<https://www.tandfonline.com/author/Lynch%2C+Laura>, Elizabeth Loftus<https://www.tandfonline.com/author/Loftus%2C+Elizabeth> & Rebecca Egan<https://www.tandfonline.com/author/Egan%2C+Rebecca>. Abstract:

Push polls are an insidious means of disseminating information under the guise of a legitimate information-gathering poll (e.g., “Would you be more or less likely to vote for X if you heard they were being investigated for tax fraud?”). While previous research has shown that push polls can affect attitudes, the current study assessed whether exposure to push polls can increase false memories for corresponding fake news stories. Across four studies, we found that participants (N = 1,290) were significantly more likely to report a false memory for a corresponding fabricated news story after push poll exposure. This was true for positive and negative stories, concerning both fictitious characters and well-known public figures. Furthermore, this effect was stronger after a delay of one week between the push poll and the news story. Our findings suggest that push polls are a potent applied example of the misinformation effect and can significantly increase susceptibility to fake news stories.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>


“Experts Call It A ‘Clown Show’ But Arizona ‘Audit’ Is A Disinformation Blueprint”<https://electionlawblog.org/?p=122445>
Posted on June 3, 2021 8:39 am<https://electionlawblog.org/?p=122445> by Rick Hasen<https://electionlawblog.org/?author=3>

Miles Parks <https://www.npr.org/2021/06/03/1000954549/experts-call-it-a-clown-show-but-arizona-audit-is-a-disinformation-blueprint> for NPR:

To Matt Masterson, the review of 2020 ballots from Maricopa County, Ariz., that’s underway is “performance art” or “a clown show,” and definitely “a waste of taxpayer money.”

But it’s not an audit.

“It’s an audit in name only,” says Masterson, a former Department of Homeland Security official<https://www.npr.org/2020/12/22/949157510/former-election-security-official-says-it-will-take-years-to-undo-disinformation> who helped lead the federal government’s election security preparations leading up to November’s election. “It’s a threat to the overall confidence of democracy, all in pursuit of continuing a narrative that we know to be a lie.”

By lie, he means the assertion from former President Donald Trump and some of his allies that election fraud cost him a second term in the White House.

And, Masterson says, the strategy chosen by the Arizona’s Republican state Senate leaders is working as intended to undermine confidence in the outcome of last year’s vote.

The process is a simple exercise in how disinformation spreads and takes hold in 2021. And experts fear it presents a blueprint for other states and lawmakers to follow, one that is already showing signs<https://www.npr.org/2021/05/29/1001603698/as-controversial-maricopa-county-audit-continues-calls-for-election-reviews-grow> of being emulated across the country.

“Now we have a playbook out there,” said Masterson, who is currently a policy fellow with the Stanford Internet Observatory, “where if you don’t like the results — by the way in an election that wasn’t particularly close … you just claim you didn’t lose and in fact the process itself was rigged against you.”
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>



--
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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