[EL] ELB News and Commentary 6/14/21

[Rick Hasen]

“Garland announces expansion of Justice Department’s voting rights unit, vowing to scrutinize GOP-backed voting restrictions and ballot reviews”<https://electionlawblog.org/?p=122618>
Posted on June 13, 2021 8:26 pm<https://electionlawblog.org/?p=122618> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/merrick-garland-voting-rights/2021/06/11/47906eda-cad1-11eb-81b1-34796c7393af_story.html>:

Attorney General Merrick Garland pledged Friday to double the size of the Justice Department’s voting rights enforcement staff to combat efforts to restrict ballot access and prosecute those who threaten or harm election workers.

In an expansive speech that invoked the nation’s long and, at times, faltering progress toward ensuring every American’s right to vote, Garland likened the fight against efforts to curtail ballot access to past campaigns enshrining voting rights for Black Americans in the Constitution and the seminal Voting Rights Act of 1965.

Garland said the additional trial attorneys, which he plans to hire over the coming 30 days, will scrutinize new laws and existing practices across the nation for potential discrimination against Americans of color, including in new measures GOP state lawmakers are pushing<https://www.washingtonpost.com/politics/2021/06/02/state-voting-restrictions/?itid=lk_inline_manual_4>. They will enforce provisions of the Voting Rights Act by challenging such laws or practices in court — and prosecute anyone found to intimidate or threaten violence against election officials.
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Posted in Department of Justice<https://electionlawblog.org/?cat=26>, Voting Rights Act<https://electionlawblog.org/?cat=15>


“How Republicans came to embrace the big lie of a stolen election”<https://electionlawblog.org/?p=122616>
Posted on June 13, 2021 8:24 pm<https://electionlawblog.org/?p=122616> by Rick Hasen<https://electionlawblog.org/?author=3>

Sam Levine<https://www.theguardian.com/us-news/2021/jun/13/republicans-big-lie-us-election-trump> for The Guardian.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump is doing more lying about the election than talking about any other subject”<https://electionlawblog.org/?p=122614>
Posted on June 13, 2021 8:13 pm<https://electionlawblog.org/?p=122614> by Rick Hasen<https://electionlawblog.org/?author=3>

Daniel Dale<https://www.cnn.com/2021/06/12/politics/analysis-trump-election-lies-blog-post-presidency/index.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+rss%2Fcnn_allpolitics+%28RSS%3A+CNN+-+Politics%29> for CNN:

Since his presidency ended, Donald Trump has issued more statements lying about the 2020 election than statements talking about any other subject.

Banned from Twitter<https://www.cnn.com/2021/01/08/tech/trump-twitter-ban/index.html> since early January, Trump has communicated his post-presidency musings in written statements that are emailed to journalists and posted on his website<https://www.donaldjtrump.com/news>. These missives, many of which were initially featured on his now-shuttered blog<https://www.cnn.com/2021/06/02/media/trump-blog-shut-down/index.html>, have replaced his tweets as the most comprehensive public record of his day-to-day thinking.

And after crunching the numbers, what’s clear is that Trump’s primary focus is the election he lost.Forty-three of the 132 post-presidency statements Trump had issued through June 9 included a lie about the election. That’s about 33%. These lies range from vague claims that the election was “stolen<https://www.donaldjtrump.com/news/statement-by-donald-j-trump-45th-president-of-the-united-states-of-america-05.25.21-04>” and “rigged<https://www.donaldjtrump.com/news/statement-by-donald-j-trump-45th-president-of-the-united-states-of-america-06.04.21-03>” to specific<https://www.donaldjtrump.com/news/statement-by-donald-j-trump-45th-president-of-the-united-states-of-america-05.15.21-3>false assertions<https://www.donaldjtrump.com/news/statement-by-donald-j-trump-45th-president-of-the-united-states-of-america-05.10.21-4> about what happened in various states he lost<https://www.donaldjtrump.com/news/statement-by-donald-j-trump-45th-president-of-the-united-states-of-america-05.28.21-03>.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Exodus of election officials raises concerns of partisanship”<https://electionlawblog.org/?p=122612>
Posted on June 13, 2021 8:09 pm<https://electionlawblog.org/?p=122612> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://apnews.com/article/election-officials-retire-trump-2020-threats-misinformation-3b810d8b3b3adee2ca409689788b863f?utm_source=twitter&utm_medium=ap&utm_campaign=socialflow>

There is no shortage of job openings for local election officials in Michigan. It’s the same in Pennsylvania. Wisconsin, too.

After facing threats and intimidation during the 2020 presidential election and its aftermath, and now the potential of new punishments in certain states, county officials who run elections are quitting or retiring early. The once quiet job of election administration has become a political minefield thanks to the baseless claims of widespread fraud <https://apnews.com/article/election-claims-biden-won-explained-bd53b14ce871412b462cb3fe2c563f18> that continue to be pushed by many in the Republican Party.

The exits raise a pressing question: Who will take these jobs? Barb Byrum, clerk of Ingham County, Michigan, has an idea.

“These conspiracy theorists are in it for the long haul. They’re in it to completely crumble our republic, and they’re looking at these election administrator positions,” said Byrum, a Democrat. “They’re playing the long game.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Tensions Flare Among Arizona Republicans Over Discredited ‘Fraudit’”<https://electionlawblog.org/?p=122610>
Posted on June 13, 2021 8:04 pm<https://electionlawblog.org/?p=122610> by Rick Hasen<https://electionlawblog.org/?author=3>

Steven Rosenfeld:<https://www.nationalmemo.com/arizona-fraudit-republican-tension->

The same split that is dividing Republicans nationally, whether to embrace or reject<https://www.nytimes.com/2021/06/07/us/politics/republican-election-fraud-claims.html> the fiction that the 2020 presidential election was illegitimate, is now reverberating<https://www.nationalmemo.com/arizona-fraudit-challenge> backstage at the Veterans Memorial Coliseum in Arizona, where pro-Trump<https://www.azcentral.com/story/news/politics/elections/2021/03/31/cyber-ninjas-founder-doug-logan-pushed-election-fraud-theories/4825258001/> contractors are leading a state-sponsored inquiry into the vote in Maricopa County, home to Phoenix and 60 percent<https://www.maricopa.gov/5539/Voting-Equipment-Facts> of Arizona voters.

Beyond the personality clashes involved, which Voting Booth heard about while reporting from Phoenix as a hand count of 2.1 million<https://www.nationalmemo.com/arizona-audit--2653017048> paper ballots was nearing completion, is an emerging bottom line: Cyber Ninjas has spent several million dollars<https://www.nationalmemo.com/arizona-audit--2653017048> and two months conducting inquiries that are not poised to present sufficient<https://www.nationalmemo.com/arizona-fraudit-challenge> analyses that can legitimately assess the presidential results.

Cyber Ninjas’ inquiries<https://www.nationalmemo.com/arizona-audit--2653017048>, which include a hand count of all paper ballots and looking for forged ballots based on high-resolution and microscopic examination of the ballot paper and ink marks, are generating reams of information that could be cited in partisan propaganda—which is how pro-Trump media<https://www.theepochtimes.com/mkt_app/vernon-jones-gop-gubernatorial-candidate-headed-to-arizona-to-observe-election-audit_3848399.html> outlets have covered the audit from its inception.

Crucially, the data Cyber Ninjas is accumulating has not been compared to the building blocks of the state-certified vote count. At best, it is conducting a loosely constructed recount, which is not an audit—which is based on comparisons.

“There must be comparable results in sufficient detail, or else it is not an audit,” said Larry Moore, the retired founder and CEO of Clear Ballot<https://clearballot.com/>, a federally certified<https://www.eac.gov/voting-equipment/certified-voting-systems> audit firm. “It is unacceptable to put out anything less.”

Moore is not an unbiased observer in Phoenix. He has criticized the inquiries and is part of a team of seasoned election auditors<https://www.nationalmemo.com/arizona-fraudit-challenge> that has parsed the same official records given to Cyber Ninjas after a Senate subpoena. The team’s early analysis<https://www.nationalmemo.com/arizona-forensic-audit-2653074322> confirmed that Joe Biden won in Arizona and offered an explanation why. The official records revealed voting patterns showing that tens of thousands<https://independentmediainstitute.org/wp-content/uploads/2021/05/Larry-Moore-Analysis.png> of voters supported most Republicans on their ballots—but did not vote for Trump.

Moore’s team, which is locally led by Tucson’s Benny White, who is a longtime Republican Party observer in state and local elections, has shared its findings with news organizations in Phoenix, whose coverage is beginning to reframe how the Senate’s exercise should be evaluated.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“It’s Time to Treat Voting Rights Like Climate Change”<https://electionlawblog.org/?p=122608>
Posted on June 13, 2021 7:45 pm<https://electionlawblog.org/?p=122608> by Rick Hasen<https://electionlawblog.org/?author=3>

Michael Barsa and David Dana for Slate:<https://slate.com/news-and-politics/2021/06/voting-rights-climate-change-investment-funds.html>

Which is why corporations must be pushed to take a stand. Both through “democratically responsible” investment funds and shareholder activism, investors can push corporations to state loudly for all to hear which voting measures they approve and which they denounce. Investors could push for corporations to issue “democracy” impact statements, which would detail the corporations’ political contributions, relevant lobbying efforts, and other measures that affect the fight for preserving democracy in the United States. Investors might push corporations to commit not to make direct or indirect campaign contributions to any politician or state party that supports anti–voting rights legislation, or federal candidates who oppose measures that would protect democracy such as the John Lewis Voting Rights Act. Admittedly, determining which investor demands on corporations would be productive in terms of the fight for democracy is not straightforward or obvious. But that is all the more reason why the effort to make those determinations needs to begin right now.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Ned Foley Slams Democrats’ Election-Reform Bill<https://electionlawblog.org/?p=122606>
Posted on June 13, 2021 5:36 am<https://electionlawblog.org/?p=122606> by Richard Pildes<https://electionlawblog.org/?author=7>

Surprisingly harsh critique from liberal election-law expert Ned Foley in his latest<https://www.washingtonpost.com/opinions/2021/06/11/how-joe-manchin-could-escape-trap-he-set-himself/> Washington Post piece:

H.R. 1 passed the House with zero Republican votes<https://clerk.house.gov/Votes/202162>, and the companion S.B. 1 has zero GOP support in the Senate<https://www.vox.com/2021/5/12/22430970/hr1-for-the-people-act-senate-manchin>. That’s because it’s a purely partisan bill aimed at helping the Democratic Party win elections, not impartial reform designed to foster fair electoral competition in America’s traditional two-party system.

If Democrats, such as House Speaker Nancy Pelosi (D-Calif.), keep saying<https://thehill.com/homenews/house/557309-in-shot-at-manchin-pelosi-calls-for-senate-to-strengthen-voting-rights> that H.R. 1/S.B. 1, as currently drafted, is essential to secure democracy, they are self-deceived or deceitful. Same-day registration is hardly necessary for the preservation of self-government.

The same goes for no-excuse absentee voting: as long as all eligible voters have adequate in-person opportunities to cast a ballot, and excuse-based absentee voting exists for those who can’t get to the polls — as it did for decades in most states — democracy can survive without on-demand, vote-by-mail for everyone. And reasonable voter ID rules are not voter suppression; in fact, making voters provide a driver’s license or other easily available ID number is a way to avoid imprecise and arbitrary signature-matching requirements that pose a greater risk of disenfranchising valid voters.

Moreover, adopting H.R. 1/S.B. 1 over the objection of every Republican in Congress would be a disaster for democracy, which is still struggling to regain its footing in the aftermath of former president Donald Trump’s “big lie” about the 2020 election being stolen. What’s most imperative for the preservation of democracy in 2022 and 2024 is the willingness of Republicans to accept vote tallies showing that their candidates lost. Achieving this becomes a lot harder if the rules for casting those ballots are forced upon them by a party-line vote — especially when those rules are drawn from the Democratic Party’s wish list of measures that facilitate their own turnout efforts.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“How Joe Manchin could escape the trap he set for himself”<https://electionlawblog.org/?p=122603>
Posted on June 11, 2021 12:18 pm<https://electionlawblog.org/?p=122603> by Rick Hasen<https://electionlawblog.org/?author=3>

Ned Foley WaPo column<https://www.washingtonpost.com/opinions/2021/06/11/how-joe-manchin-could-escape-trap-he-set-himself/>:

Manchin’s message leaves a nagging question: what happens if he brokers a deal with all seven GOP senators who voted to convict Trump, and perhaps also Sen. Rob Portman (R-Ohio) (who voted for the Jan. 6<https://www.dispatch.com/story/news/2021/05/28/jan-6-commission-ohio-sen-rob-portman-votes-advance-debate/5244615001/> commission) as an eighth, but he can’t find a ninth and tenth Republican to overcome a filibuster?

It is too soon to know. With no change to filibuster procedures, that risks leaving electoral reform that meets Manchin’s test of “both Democrats and Republicans coming together” vetoed by a couple of votes. It would mean even a bill essential to protect the republic from authoritarian efforts to repudiate honest elections would fail because a filibuster threshold that once was 67 votes<https://www.pbs.org/newshour/politics/how-does-the-filibuster-work>, and now is 60 votes, can’t be revised again to 57 or 58 votes.

Manchin is understandably reluctant to tinker with the filibuster, knowing the shoe sooner or later will be on the other foot. But a small tweak might be necessary to achieve his own priority of bipartisan democracy preservation.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


A Couple of Interesting Amicus Briefs Filed in CA Supreme Court in Santa Monica’s California Voting Rights Act Case<https://electionlawblog.org/?p=122601>
Posted on June 11, 2021 11:49 am<https://electionlawblog.org/?p=122601> by Rick Hasen<https://electionlawblog.org/?author=3>

The California Supreme Court is hearing an important case about whether the City of Santa Monica can be forced to draw districts for conducting its city elections under the California Voting Rights Act. My earlier coverage is here<https://electionlawblog.org/?p=117222>.

Amicus Curiae Brief<https://www.santamonica.gov/Media/Default/Attorney/Election/20210610.AmicusBrief.Wessel.pdf> —  Brief from Bruce A. Wessel in support of neither party, bringing Cooper v. Harris and scholarship on racial gerrymandering to the Court’s attention.

Amicus Curiae Brief<https://www.santamonica.gov/Media/Default/Attorney/Election/20210610.Professors'%20Amicus%20Brief.pdf> —  Brief from Amici Scholars in support of Plaintiffs (Doug Mirell brief), bringing in wisdom of lots of voting rights scholars.

The California AG has received an extension to file an amicus brief until July 12.

You can find the filings in the case at this page<https://www.santamonica.gov/Election-Litigation-PNA-V-Santa-Monica>.
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>


For ELB Readers Getting Daily Posts by Feedburner, Expect a Change to Feedblitz on Saturday<https://electionlawblog.org/?p=122598>
Posted on June 11, 2021 11:09 am<https://electionlawblog.org/?p=122598> by Rick Hasen<https://electionlawblog.org/?author=3>

As I mentioned last week, Feedburner is no longer going to be fully supporting its service to send daily emails with ELB posts to those readers who have signed up. So everyone who as an ELB subscription with Feedburner is being transitioned over to Feedblitz, starting tomorrow. (For tomorrow only, you should receive an email from both Feedburner and Feedblitz.) So that the Feedblitz email will not go into spam, you should be looking for email coming from feedblitz at mail.feedblitz.com. If you wish to unsubscribe from getting ELB blog posts via Feedblitz, simply click on “Safely Unsubscribe” at the bottom of each email.

If you wish to add yourself as a subscriber to ELB’s feed on Feedblitz, click here<https://forms.feedblitz.com/dmy>.

Beginning July 1, election law listserv users will receive daily ELB posts via Feedblitz rather than from a personal “ELB News and Commentary” email sent from me.

Thanks!
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Letter: Campaign Finance Regulations and Public Policy”<https://electionlawblog.org/?p=122596>
Posted on June 11, 2021 10:58 am<https://electionlawblog.org/?p=122596> by Rick Hasen<https://electionlawblog.org/?author=3>

Martin Gilens, Shawn Patterson Jr., & Pavielle Haines in APSR<https://www.cambridge.org/core/journals/american-political-science-review/article/campaign-finance-regulations-and-public-policy/B739B3AB64C90AE652CEE2FF6911883F>:

Despite a century of efforts to constrain money in American elections, there is little consensus on whether campaign finance regulations make any appreciable difference. Here we take advantage of a change in the campaign finance regulations of half of the U.S. states mandated by the Supreme Court’s Citizens United decision. This exogenously imposed change in the regulation of independent expenditures provides an advance over the identification strategies used in most previous studies. Using a generalized synthetic control method, we find that after Citizens United, states that had previously banned independent corporate expenditures (and thus were “treated” by the decision) adopted more “corporate-friendly” policies on issues with broad effects on corporations’ welfare; we find no evidence of shifts on policies with little or no effect on corporate welfare. We conclude that even relatively narrow changes in campaign finance regulations can have a substantively meaningful influence on government policy making.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“Revealed: rightwing firm posed as leftist group on Facebook to divide Democrats”<https://electionlawblog.org/?p=122594>
Posted on June 11, 2021 10:03 am<https://electionlawblog.org/?p=122594> by Rick Hasen<https://electionlawblog.org/?author=3>

The Guardian:<https://www.theguardian.com/technology/2021/jun/11/facebook-ads-turning-point-usa-rally-forge>

A digital marketing firm closely linked to the pro-Trump youth group Turning Point USA was responsible for a series of deceptive Facebook<https://www.theguardian.com/technology/facebook> ads promoting Green party candidates during the 2018 US midterm elections, the Guardian can reveal.

In an apparent attempt to split the Democratic vote in a number of close races, the ads<https://www.facebook.com/ads/library/?active_status=all&ad_type=political_and_issue_ads&country=US&page_ids%5b0%5d=751228941880577&q=America%20Progress%20Now&search_type=keyword_unordered&media_type=all> purported to come from an organization called America Progress Now (APN) and used socialist memes and rhetoric to urge leftwing voters to support Green party candidates.

Facebook was aware of the true identity of the advertiser – the conservative marketing firm Rally Forge – and the deceptive nature of the ads, documents seen by the Guardian show, but the company determined that they did not violate its policies.

Rally Forge would go on to set up a pro-Trump domestic “troll farm”<https://www.washingtonpost.com/politics/turning-point-teens-disinformation-trump/2020/09/15/c84091ae-f20a-11ea-b796-2dd09962649c_story.html> for Turning Point Action, a “sister<https://trumpstudents.org/about>” organization of Turning Point USA, in 2020, earning a permanent ban from Facebook.

“There were no policies at Facebook against pretending to be a group that did not exist, an abuse vector<https://www.theguardian.com/technology/2021/apr/12/facebook-loophole-state-backed-manipulation> that has also been used by the governments of Honduras and Azerbaijan,” said Sophie Zhang, a former Facebook employee and whistleblower<https://www.theguardian.com/technology/2021/apr/12/facebook-fake-engagement-whistleblower-sophie-zhang> who played a small role in the investigation of the Green party ads.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


Campaign Finance Ruling in Canada Relies in Part on a “Structural” Inference<https://electionlawblog.org/?p=122590>
Posted on June 11, 2021 7:36 am<https://electionlawblog.org/?p=122590> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is a guest post from Yasmin Dawood<https://www.law.utoronto.ca/faculty-staff/full-time-faculty/yasmin-dawood>:

Thanks very much to Rick for the invitation to write this guest post. Earlier this week, a lower court in Ontario issued an important campaign finance decision, Working Families Ontario v. Ontario<https://www.canlii.org/en/on/onsc/doc/2021/2021onsc4076/2021onsc4076.pdf>, which struck down the province’s new rules on third party political advertising. The new rules applied spending limits on political advertising by third parties (which means any person or group that is not a candidate or a political party) during a 12-month “pre-election period” leading up to the issuance of an election writ. The court held that these limits infringed the freedom of expression, and moreover, did not satisfy the proportionality requirements under section 1 of the Charter.

Without delving too deeply into the judgment, the court held that the limits failed to satisfy the “minimal impairment” prong of the proportionality analysis because the government offered no explanation as to why it recently extended the pre-election period from 6 months to 12 months while holding constant the amount of the spending limit ($600,000). The court was not opposed, in theory, to spending limits during a pre-election period in order to preserve the egalitarian principle of elections, particularly given the system of fixed election dates. Nor did the judgment depart from the Supreme Court of Canada’s decision in Harper v. Canada (2004) upholding the constitutionality of campaign finance restrictions during the election period, i.e. the time period subsequent to the issuance of an election writ leading up to Election Day. (It is also worth noting that third party advertising restrictions during a pre-election period were struck down by the B.C. Court of Appeal in 2011 and 2012; at the federal level, the Canada Elections Act introduced a more narrowly drawn pre-election restricted period in 2018.)

The Working Families decision may be of interest to scholars of U.S. election law because the court relied in part on a structural inference in its minimal impairment analysis. The government’s failure to explain the extension of the pre-election period from 6 months to 12 months is significant, the court found, because the “subject of electoral design is one in which the incumbent government has a structural conflict of interest in that its interest in self-preservation may dominate its policy formulation” (para 73). The court went on to say that “[t]his potential for partisan self-dealing poses a fundamental challenge to the democratic system, and represents a context in which a more rights-oriented logic is called for to safeguard democratic institutions” (para 74). This aspect of the claim was successfully argued by Colin Feasby, a widely published election law expert and the lead counsel for the intervenor, the Canadian Civil Liberties Association. The court also cited my article on “structural rights,”<https://ssrn.com/abstract=2330509> which discusses and builds upon the work of several scholars of U.S. election law, including Guy-Uriel Charles, Heather Gerken, Richard Hasen, Samuel Issacharoff, and Richard Pildes, among others.

The court’s ruling in Working Families has attracted considerable attention because the province’s Premier, Doug Ford, announced that his government would be invoking the notwithstanding clause to overrule the court’s decision. The notwithstanding clause, which is found in section 33 of the Charter, has traditionally been viewed as a mechanism that ought to be used only in exceptional circumstances by the government. In 2018, Premier Ford threatened to invoke the notwithstanding clause to overrule a lower court judgment which had struck down his government’s mid-election redistricting of the City of Toronto; however, an interim judgment by the Ontario Court of Appeal, which issued a stay on the lower court decision, made it unnecessary. The Toronto (City) v. Ontario mid-election redistricting case was argued before the Supreme Court of Canada earlier this year but the judgment has yet to be rendered. My analysis of the case can be found here<https://ssrn.com/abstract=3803443>.

It is hard to predict how the current controversy involving the Working Families decision will unfold, but, in my view, Premier Ford’s invocation of the notwithstanding clause in this context is a worrisome development. The next provincial election will be held on or before June 2, 2022, which means that the 12-month pre-election period has already kicked in. Assuming that the restrictions will be re-enacted with the notwithstanding qualifier in the coming days, Premier Ford will have placed significant limits on the ability of his critics to engage in political advertising in the year leading up to the next election.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, comparative election law<https://electionlawblog.org/?cat=107>



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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