[EL] ELB News and Commentary 6/11/21

[Rick Hasen]

“The Trailer: The ‘Arizona model’: Republicans trek to Phoenix, planning 2020 election audits back home”<https://electionlawblog.org/?p=122587>
Posted on June 11, 2021 7:12 am<https://electionlawblog.org/?p=122587> by Rick Hasen<https://electionlawblog.org/?author=3>

Weigel reports.<https://www.washingtonpost.com/politics/2021/06/10/trailer-arizona-model-republicans-trek-phoenix-planning-2020-election-audits-back-home/>
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Fact-checking Trump’s statement that Native Americans were paid to vote”<https://electionlawblog.org/?p=122585>
Posted on June 11, 2021 7:11 am<https://electionlawblog.org/?p=122585> by Rick Hasen<https://electionlawblog.org/?author=3>

Politifact reports.<https://www.politifact.com/article/2021/jun/10/fact-checking-trumps-statement-native-americans-we/>

In a 34-page ruling <https://www.democracydocket.com/wp-content/uploads/sites/45/2020/11/20-OC-00163-Order-Granting-Motion-to-Dismiss-Statement-of-Contest.pdf> in December, District Court Judge James Todd Russell found “no credible or reliable evidence” that the election was affected by fraud. The plaintiffs didn’t prove that the Nevada Native Vote Project “gave or offered to give any person anything of value for the purpose of manipulating or altering the outcome of the election,” or prove that the project acted on behalf of the Biden campaign, Russell wrote.

The Nevada Supreme Court<https://www.democracydocket.com/wp-content/uploads/sites/45/2020/11/20-44711.pdf> affirmed Russell’s ruling.

However, Nevada Secretary of State Barbara Cegavske’s office released a report<https://www.nvsos.gov/sos/home/showpublisheddocument?id=9428> in April that stated law enforcement was investigating an allegation that members of the Nevada Native Vote Project violated federal<https://www.law.cornell.edu/uscode/text/18/597> and state<https://law.justia.com/codes/nevada/2013/chapter-293/statute-293.700/> laws that prohibit bribes or expenditures to influence voting. A spokesperson for Cegavske said her office doesn’t comment about ongoing investigations.

Richard Hasen, an election law professor at University of California Irvine, said he didn’t know anything specific about the giveaways at issue in Nevada. However, Hasen said giveaways to anyone who votes in a federal election are illegal, even if it is just payment to get people to turn out to vote.

“Yet these giveaways are quite common,” Hasen said. In 2008, Hasen wrote<https://www.abajournal.com/news/article/election_law_blogger_responsible_for_free_ben_jerrys> that a free giveaway by Ben & Jerry’s ice cream to anyone who showed they voted could violate federal law. Ben & Jerry’s then offered free ice cream to everyone on Election Day. Hasen said giveaways are legal<https://www.today.com/food/election-day-2020-deals-freebies-you-can-take-advantage-t196212?cid=sm_npd_td_fb_ma&fbclid=IwAR0u-D5mBchbvSB1R9JdM_KL-QyVtgDPguhSuhKErgt8h60zgAy9IyBySdE> if they are not tied to proof of voting.

We found less information about any giveaways to Native American voters in Arizona.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Must-read Reuters: “Trump-inspired death threats are terrorizing election workers”<https://electionlawblog.org/?p=122583>
Posted on June 11, 2021 7:07 am<https://electionlawblog.org/?p=122583> by Rick Hasen<https://electionlawblog.org/?author=3>

Reuters:<https://www.reuters.com/investigates/special-report/usa-trump-georgia-threats/?utm_source=twitter&utm_medium=Social>

Late on the night of April 24, the wife of Georgia’s top election official got a chilling text message: “You and your family will be killed very slowly.”

A week earlier, Tricia Raffensperger, wife of Secretary of State Brad Raffensperger, had received another anonymous text: “We plan for the death of you and your family every day.”

That followed an April 5 text warning. A family member, the texter told her, was “going to have a very unfortunate incident.”

Those messages, which have not been previously reported, illustrate the continuing barrage of threats and intimidation against election officials and their families months after former U.S. President Donald Trump’s November election defeat. While reports of threats against Georgia officials emerged in the heated weeks after the voting, Reuters interviews with more than a dozen election workers and top officials – and a review of disturbing texts, voicemails and emails that they and their families received – reveal the previously hidden breadth and severity of the menacing tactics.
[cid:image002.jpg at 01D75E92.4866C5D0]DEATH THREATS: Tricia Raffensperger – wife of Georgia’s top election official – provided Reuters with screen shots of menacing text messages she received recently.

Trump’s relentless false claims that the vote was “rigged” against him sparked a campaign to terrorize election officials nationwide – from senior officials such as Raffensperger to the lowest-level local election workers. The intimidation has been particularly severe in Georgia, where Raffensperger and other Republican election officials refuted Trump’s stolen-election claims. The ongoing harassment could have far-reaching implications for future elections by making the already difficult task of recruiting staff and poll workers much harder, election officials say.

In an exclusive interview, Tricia Raffensperger spoke publicly for the first time about the threats of violence to her family and shared the menacing text messages with Reuters….

Some, like Raffensperger, are senior officials who publicly refused to bow to Trump’s demands to alter the election outcome. In Georgia, people went into hiding in at least three cases, including the Raffenspergers. Arizona Secretary of State Katie Hobbs, a Democrat, told Reuters she continues to receive death threats. Michigan’s Secretary of State Jocelyn Benson – a Democrat who faced armed protesters outside her home in December – is also still getting threats, her spokesperson said, declining to elaborate.

But many others whose lives have been threatened were low- or mid-level workers, just doing their jobs. Trump’s incendiary rhetoric could reverberate into the 2022 midterm congressional elections and the 2024 presidential vote by making election workers targets of threatened or actual violence. Many election offices will lose critical employees with years or decades of experience, predicts David Becker, executive director of the nonpartisan Center for Election Innovation and Research.

“This is deeply troubling,” Becker said.

Carlos Nelson, elections supervisor for Ware County in southeastern Georgia, shares that fear. “These are people who work for little or no money, 12 to 14 hours a day on Election Day,” Nelson said. “If we lose good poll workers, that’s when we’re going to lose democracy.”
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Our Endangered Right to Protest”<https://electionlawblog.org/?p=122581>
Posted on June 11, 2021 7:03 am<https://electionlawblog.org/?p=122581> by Rick Hasen<https://electionlawblog.org/?author=3>

Tabatha Abu-el Haj<https://washingtonmonthly.com/2021/06/11/our-endangered-right-to-protest/> in the Washington Monthly:

The same cannot be said today. A recent study<https://www.washingtonpost.com/politics/2020/10/16/this-summers-black-lives-matter-protesters-were-overwhelming-peaceful-our-research-finds/> found that 96 percent of protests for racial justice in 2020 involved no injuries to persons or property. Yet it was not just in Philadelphia that Americans who took to the streets demanding police accountability were met with tear gas, pepper spray, and rubber bullets. Indeed, the Attorney General of the United States himself ordered<https://slate.com/news-and-politics/2020/07/freedom-of-assembly-neglected-before-portland.html> the forcible removal of Americans peacefully protesting in Lafayette Square.

The First Amendment offered little constitutional cover in practice from these forced dispersals, or from the many other arrests. According to a House Oversight Committee briefing<https://oversight.house.gov/news/press-releases/subcommittee-to-hold-briefing-on-first-amendment-violations-at-black-lives>, more than 10,000 individuals who participated in anti-police brutality marches in May and June 2020 were arrested<https://investigativereportingworkshop.org/investigation/swept-up-by-police/>, mostly for nonviolent misdemeanors. The vast majority of these charges—upward of 90 percent in many jurisdictions—have been dropped or dismissed<https://www.theguardian.com/us-news/2021/apr/17/george-floyd-protesters-charges-citations-analysis>. Such arrests, even when they are subsequently dropped, nullify the formal constitutional right by taking protesters off the streets at the moment they wish to register their protest. And they create fear and reticence to participate again.

Protesters have fared only slightly better when their claims have been heard by courts. Judge Algenon L. Marbley, Chief Judge for the Southern District of Ohio, recently estimated<https://casetext.com/case/alsaada-v-city-of-columbus> that there have been no fewer than 73 constitutional challenges arising out of the summer’s protests of George Floyd and Breonna Taylor’s murders. Yet, for the most part, judicial vindication of the right of peaceable assembly has been overshadowed by claims under the Fourth Amendment’s right to be free from excessive force. Even in those cases that do engage with First Amendment issues, courts have not adjudicated the constitutionality of the dispersal orders themselves. Judge Marbley himself only ruled that the plaintiffs were likely to succeed in proving that the Columbus police department’s decision to use force against nonviolent protesters had been in retaliation for the anti-police message of the protests. His decision takes no official position on whether any of the dispersal orders were, per se, a violation of the First Amendment, even though he credits testimony from a police commander that in at least one of the incidents under review, “99% of these people are peaceful”—yelling, but not threatening anyone. His opinion in Alsaada v. City of Columbus thus does not clarify the scope of the right of peaceable assembly.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


House Holding Hearing Friday on John Lewis Voting Rights Bill<https://electionlawblog.org/?p=122577>
Posted on June 10, 2021 2:44 pm<https://electionlawblog.org/?p=122577> by Rick Hasen<https://electionlawblog.org/?author=3>

What: “Voting in America: The Potential for Polling Place Quality and Restrictions on Opportunities to Vote to Interfere with Free and Fair Access to the Ballot,” a hearing before the Committee on House Administration, Subcommittee on Elections

When: Friday, June 11, 2021, 11 AM ET

Where:  Livestream available here<https://u7061146.ct.sendgrid.net/ls/click?upn=4tNED-2FM8iDZJQyQ53jATUaP2YJN9COgOjuneMKVihqcjGHd0zdELqbAUG86qIgg2PPKVG1nx8aoIl4-2BULB8txqsy5OLlQpbpBMlxy9M3tE1-2FWcR77565Im3PopspGYiA6CMJIzWWLHTd-2F9sLKLK1JtyjTYGo8dQEg7dc1YS9Dyg-3DJDIh_LYw3uDP5U2cmeBBe07KqI8AzZYA0AXw8fCnkHEVTP6A2alsIgMDEZK5-2BwN9FSk7CSrS0TWT5YvIs-2B1o7-2Bal4g-2BrsTB9n0gc0CqQihqtAGZPWhrTjfn95mw-2BBMdfOuT9hl-2FQLSa-2FiKJ8Q8zBsVWPtaJ-2FYE6x1Wx9UZunNbZ3ToaX4SfgKG8SfNosi66rtFiBSuWCMyuBuWpknXQlCdEA-2By4qep2lUVIQuxPJKWsdoykVeLDWpHBnLAaIAYgv1suv0PUygZmm7bpRiSZqF0LIO1ntd-2BLJv-2F0CsPjot7HGAjtcNt9JXyzQgBnE7-2BoPDh9X0NjSSdGK4zAIIp5N4NgDZ5A-3D-3D>.

Who:

Panel 1
·         Mimi Marziani, President, Texas Civil Rights Project
·         Jesselyn McCurdy, Interim Executive VP for Government Affairs, Leadership Conference on Civil and Human Rights
·         Kevin Morris, Quantitative Researcher, Brennan Center for Justice at NYU Law
·         Donald Palmer, Chair, U.S. Election Assistance Commission
·         Stephen Pettigrew, Director of Data and Science, University of Pennsylvania

Panel 2
·         Gilda Daniels, Director of Litigation, Advancement Project
·         Michael C. Herron, Professor, Dartmouth University
·         Danielle Lang, Director, Voting Rights, Campaign Legal Center
·         Isabel Longoria, Elections Administrator, Harris County, Texas
·         Ashlee Titus, Board Member and Corporate Secretary, Lawyers Democracy Fund
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>


WaPo: Major Announcement on Voting Rights Coming from DOJ<https://electionlawblog.org/?p=122574>
Posted on June 10, 2021 1:10 pm<https://electionlawblog.org/?p=122574> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/democrats-split-biden-infrastructure/2021/06/10/f1f95a8e-c91f-11eb-afd0-9726f7ec0ba6_story.html>:

Democrats don’t have the votes to pass their marquee voting bill in the Senate. White House officials, having considered the obstacles they face on Capitol Hill, have focused on unilateral actions they can take as they face pressure to act. The Justice Department plans to make a significant announcement regarding voting rights as soon as Friday, according to senior administration officials. The officials declined to describe the planned announcement further.

Without saying so publicly, some White House officials do not adopt the do-or-die tone many Democrats use when they talk about the For the People Act, the party’s premier voting bill. One senior White House official working on voting rights said that even if that bill took effect, Republican legislatures would find workarounds. The official spoke on the condition of anonymity because they, like others interviewed for this story, were not authorized to speak on the record….

The White House official working on voting rights expressed strong support for the For the People Act, even though the official felt it was not a panacea. The official said there are other means of fighting the Republican voting laws, through the courts or the executive branch. But the official said such efforts would be cumbersome and acknowledged none would be as effective as the legislation.
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Posted in Department of Justice<https://electionlawblog.org/?cat=26>


Legislation News<https://electionlawblog.org/?p=122566>
Posted on June 10, 2021 12:09 pm<https://electionlawblog.org/?p=122566> by Anita Krishnakumar<https://electionlawblog.org/?author=16>

Court limits definition of “violent felony” in federal gun-possession penalty<https://www.scotusblog.com/2021/06/supreme-court-limits-definition-of-violent-felony-in-federal-gun-possession-penalty/>

Scotusblog<https://www.scotusblog.com/2021/06/supreme-court-limits-definition-of-violent-felony-in-federal-gun-possession-penalty/>

A fractured Supreme Court on Thursday narrowed the scope of a key phrase in the Armed Career Criminal Act, ruling that crimes involving recklessness do not count as “violent felonies” for the purpose of triggering a key sentencing enhancement.

Justice Elena Kagan announced the judgment of the court and wrote an opinion that was joined by Justices Stephen Breyer, Sonia Sotomayor and Neil Gorsuch. Justice Clarence Thomas did not join Kagan’s opinion but concurred in the result. That means that five justices rejected the federal government’s more expansive interpretation of the term “violent felony” and handed a victory to a criminal defendant who argued that the sentencing enhancement did not apply to his conduct.

The case, Borden v. United States, involved a provision of ACCA that imposes a 15-year minimum sentence on anyone convicted of being a felon in possession of a firearm if the person has three or more prior convictions for a “violent felony.” The term “violent felony” is defined, in relevant part, as any felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another.”

Nothing terribly noteworthy in the case. What I was most struck by is the snark level in Justice Kagan’s plurality and Justice Kavanaugh’s dissenting opinions. This is not polite disagreement; it’s vehement, in-your-face disagreement. Unfortunately, this seems to be increasingly par for the course for the Court (in its statutory cases at least). I’ll also just note the plurality’s emphasis on grammar rules — i.e., the fact that the “against another person” phrase modifies the “use of force” phrase. It feels, anecdotally, like the Court is placing more and more emphasis on grammar-based arguments lately.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1> | Tagged statutory interpretation<https://electionlawblog.org/?tag=statutory-interpretation>


“A Growing Number Of Critics Raise Alarms About The Electoral College”<https://electionlawblog.org/?p=122570>
Posted on June 10, 2021 12:05 pm<https://electionlawblog.org/?p=122570> by Rick Hasen<https://electionlawblog.org/?author=3>

Mara Liasson<https://www.npr.org/2021/06/10/1002594108/a-growing-number-of-critics-raise-alarms-about-the-electoral-college> for NPR.
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Posted in electoral college<https://electionlawblog.org/?cat=44>


“Georgia 2020 Election Deniers Setting Sights On Higher Office”<https://electionlawblog.org/?p=122563>
Posted on June 10, 2021 11:31 am<https://electionlawblog.org/?p=122563> by Rick Hasen<https://electionlawblog.org/?author=3>

GPB:<https://www.gpb.org/news/2021/06/10/georgia-2020-election-deniers-setting-sights-on-higher-office>

For the past seven months, a group of Republican lawmakers have engaged in efforts to cast doubt on Georgia’s election integrity and overturn the results of a 2020 presidential race that was counted three times — each count upholding President Joe Biden’s victory.

Now, some are parlaying their election skepticism into bids for higher office, launching campaigns for Congress, the governor’s mansion and the office of the top election official in the state, according to a GPB News and Georgia News Lab<https://www.facebook.com/GeorgiaNewsLab> analysis.

There is no evidence of widespread fraud in the 2020 election, as confirmed by the original tally, a hand-counted risk-limiting audit of all the nearly five million votes for president, and a machine recount requested by the Trump campaign.

But that hasn’t stopped prominent supporters of former President Donald Trump from promoting falsehoods about absentee ballot fraud, floating claims of illegal voting and parroting allegations of conspiracies that have been thoroughly debunked by election officials….

U.S. Rep. Jody Hice’s (R-Greensboro) campaign for Raffenperger’s post was launched with Trump’s support on the premise of false claims about the election. Hice, one of the leading proponents of election misinformation<https://www.gpb.org/news/2021/03/22/rep-jody-hice-who-pushed-false-election-conspiracies-announces-secretary-of-state> in Congress, told right-wing media outlet Newsmax in November that he was not “convinced at all, not for one second, that Joe Biden won the state of Georgia.” He also falsely claimed absentee applications were sent to “illegal voters” and echoed debunked claims about suitcases of ballots added into the totals.

Hours after the Jan. 6 insurrection attempt at the U.S. Capitol, Hice objected to certifying Georgia’s electoral votes and came under fire for a social media post that morning calling the planned objections “our 1776 moment.”…

While the conspiracy-driven positions of candidates such as Jody Hice and right-wing media outlets like the Gateway Pundit and One America News Network may be some of the loudest voices on the election, some of the most influential figures occupy less extreme positions on the spectrum of election skepticism.

Two of the most visible proponents of misinformation about elections are Burt Jones, who recently said he will soon be announcing a run for statewide office, likely lieutenant governor, and Beach, who is considered a likely candidate for Congress.

Georgia GOP chair David Shafer presented the pair with “Warrior Awards” at the state Republican Party convention over the weekend.

“He led the charge, he cosigned lawsuits, he cosigned amicus briefs for lawsuits,” Shafer said of Sen. Jones. “And when it was all said and done, when the General Assembly convened in January, he was stripped of every committee assignment of value because the only people punished or held to account in the last election cycle were the people who called out the election wrongdoing.”

Since November, Jones has repeatedly made comments that sowed doubt about the election system that he voted to authorize in 2019. Last month, he called for an audit of last year’s election and suggested on a conservative radio show that, if fraudulent ballots were found, the legislature could reconvene in a special session and overturn results that have already been counted and certified.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


June 16 Event: “Virtual Summit: Continuing Threats to Free and Fair Elections”<https://electionlawblog.org/?p=122560>
Posted on June 10, 2021 11:27 am<https://electionlawblog.org/?p=122560> by Rick Hasen<https://electionlawblog.org/?author=3>

Via email from Bipartisan Policy Center (registration link)<http://bpcevents.cloudapp.net/Pages/Home.aspx?eventid=%7B577AD6C3-38BE-EB11-8236-000D3A8D7BF8%7D>:

Election administrators endured unthinkable stress and attacks during the 2020 cycle, and our country is now hurtling towards a cliff of retirements of the people who best understand voting.

Join us, the Brennan Center, and the Ash Center as we explore challenges to voting and necessary solutions during a two-part panel discussion. Our first panel will explore current threats to U.S. elections, followed by a second panel discussion on election official independence and sustainability.

Panel 1 Participants

Natalie Adona | Assistant Clerk-Recorder/Registrar of Voters, Nevada County (NV)

Katie Harbath | Elections Fellow, BPC

Al Schmidt | City Commissioner, Philadelphia

Matthew Masterson | Non-Resident Policy Fellow, Stanford Internet Observatory; Moderator

Panel 2 Participants

Lisa Danetz | Consultant, Brennan Center for Justice

Chris Hollins | Former Clerk, Harris County (TX)

Aaron Ockerman | Executive Director, Ohio Association of Election Officials

Justin Roebuck | County Clerk, Ottawa County (MI)

Tina Barton | Senior Program Advisor, U.S. Election Assistance Commission; Moderator
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Appeals Court Denies GOP Bid to Defend North Carolina Voter ID Law”<https://electionlawblog.org/?p=122557>
Posted on June 9, 2021 1:05 pm<https://electionlawblog.org/?p=122557> by Rick Hasen<https://electionlawblog.org/?author=3>

Courthouse News<https://www.courthousenews.com/appeals-court-denies-gop-bid-to-defend-north-carolina-voter-id-law/>:

Republican members of the North Carolina General Assembly are not allowed to intervene on behalf of the state in a lawsuit over its embattled voter ID requirements, the full Fourth Circuit ruled<https://www.courthousenews.com/wp-content/uploads/2021/06/nc-voter-id-ca4.pdf> Monday.

In a 45-page majority opinion written by U.S. Circuit Judge Pamela A. Harris on Monday, the en banc appeals court upheld a federal judge’s refusal to let individual GOP lawmakers defend the controversial election law requiring photo ID at the polls.

Harris wrote that the district court did not abuse its discretion when it found that the legislators’ proposed intervention in the case was “likely to cause undue delay and prejudice to the plaintiffs.”
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Posted in voter id<https://electionlawblog.org/?cat=9>



--
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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