[EL] ELB News and Commentary 3/15/21

Mon Mar 15 08:22:33 PDT 2021

“For Voting Rights Advocates, a ‘Once in a Generation Moment’ Looms”<https://electionlawblog.org/?p=121190>
Posted on March 15, 2021 8:17 am<https://electionlawblog.org/?p=121190> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/03/15/us/voting-rights-advocates-filibuster.html?campaign_id=9&emc=edit_nn_20210314&instance_id=28065&nl=the-morning%C2%AEi_id=117282&segment_id=53424&te=1&user_id=73afc232b34fb48763946ae71c55eb73>

State and national voting-rights advocates are waging the most consequential political struggle over access to the ballot since the civil rights era, a fight increasingly focused on a far-reaching federal overhaul of election rules in a last-ditch bid to offset a wave of voting restrictions sweeping Republican-controlled state legislatures.

The federal voting bill, which passed in the House this month with only Democratic support<https://www.nytimes.com/2021/03/03/us/politics/house-voting-rights-bill.html>, includes a landmark national expansion of voting rights, an end to partisan gerrymandering of congressional districts and new transparency requirements on the flood of dark money financing elections that would override the rash of new state laws.

The energy in support for it radiates from well-financed veteran organizers to unpaid volunteers, many who were called to political activism after former President Donald J. Trump’s upset win in 2016. It is engaging Democrats in Washington and voting rights activists in crucial states from Georgia to Iowa to West Virginia to Arizona — some facing rollbacks in access to the ballot, some with senators who will play pivotal roles and some with both.

But after approval of the Democratic bill in the House, the campaign to pass the For the People Act, designated Senate Bill 1, increasingly appears to be on a collision course with the filibuster. The rule requires 60 votes for passage of most legislation in a bitterly divided Senate, meaning that Republicans can kill the voting bill and scores of other liberal priorities despite unified Democratic control of Washington.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Kobach teamed up with Wichita businessman to sell COVID-killing device. An investigation found no validity to their claims.”<https://electionlawblog.org/?p=121188>
Posted on March 15, 2021 8:14 am<https://electionlawblog.org/?p=121188> by Rick Hasen<https://electionlawblog.org/?author=3>

LOL<https://kansasreflector.com/2021/03/14/kobach-teamed-up-with-wichita-businessman-to-sell-covid-killing-device-an-investigation-found-no-merit-to-their-claims/>.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“Police Shrugged Off the Proud Boys, Until They Attacked the Capitol”<https://electionlawblog.org/?p=121186>
Posted on March 15, 2021 7:51 am<https://electionlawblog.org/?p=121186> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/03/14/us/proud-boys-law-enforcement.html>

But an examination of the two men’s histories shows that local and federal law enforcement agencies passed up several opportunities to take action against them and their fellow Proud Boys long before they breached the Capitol.

The group’s propensity for violence and extremism was no secret. But the F.B.I. and other agencies had often seen the Proud Boys as they chose to portray themselves, according to more than a half-dozen current and former federal officials: as mere street brawlers who lacked the organization or ambition of typical bureau targets like neo-Nazis, international terrorists and Mexican drug cartels.

“There was a sense that, yes, their ideology is of concern, and, yes, they are known to have committed acts of violence that would be by definition terrorism, but we don’t worry about them,” said Elizabeth Neumann,an assistant secretary for threat prevention in the Department of Homeland Security who left last year. “The Proud Boys are just the guys-that-drink-too much-after-the-football-game-and-tend-to-get-into-bar-fights type of people — people that never looked organized enough to cause serious national security threats.”

Although law enforcement agencies cannot investigate political groups without reasonable suspicion of a crime, some former officials said they were surprised by the Proud Boys’ apparent impunity….

Local police officers have appeared at times to side with the Proud Boys, especially when they have squared off against leftists openly critical of law enforcement. Some local officials have complained that without guidance from federal agencies, their police departments were ill equipped to understand the dangers of a national movement like the group.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Georgia voting rights activists pressure big corporations to oppose GOP-backed ballot restrictions”<https://electionlawblog.org/?p=121184>
Posted on March 15, 2021 7:47 am<https://electionlawblog.org/?p=121184> by Rick Hasen<https://electionlawblog.org/?author=3>

CNBC<https://www.cnbc.com/2021/03/14/georgia-activists-pressure-big-corporations-to-oppose-voting-restrictions-.html>:

Civil rights and activist groups are turning up the pressure on large Georgia companies like Coca-Cola<https://www.cnbc.com/quotes/KO> and Delta Airlines<https://www.cnbc.com/quotes/DAL> to oppose sweeping voting restrictions proposed by Republican state legislators.

“We’ve got the power of organized people. They’ve got the power of organized money. And between us and them, we could put pressure on these legislators or, worst case scenario, the governor to kill these bills,” Cliff Albright, co-founder of Black Voters Matter, told CNBC.

Groups including Black Voters Matter, the New Georgia Project Action Fund and the Georgia NAACP on Friday launched the next phase of their campaign in local press and on social media asking supporters to directly contact CEOs, presidents and headquarters of major Georgia-based corporations. They’re urging them to speak out publicly against the proposed voting restrictions and to stop donating money to the Republican legislators sponsoring the bills.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Trump’s false claims of voter fraud inspire flurry of voting restriction bills”<https://electionlawblog.org/?p=121182>
Posted on March 15, 2021 7:45 am<https://electionlawblog.org/?p=121182> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico reports<https://www.politico.com/news/2021/03/15/voting-restrictions-states-475732>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Top Democratic Election Lawyer Sanctioned in Suit Against Texas”<https://electionlawblog.org/?p=121180>
Posted on March 15, 2021 7:34 am<https://electionlawblog.org/?p=121180> by Rick Hasen<https://electionlawblog.org/?author=3>

Bloomberg Law<https://www.bloomberglaw.com/product/blaw/bloomberglawnews/bloomberg-law-news/BNA%2000000178-28d6-d55c-af79-29f6867b0003?bwid=00000178-28d6-d55c-af79-29f6867b0003>:

One of the Democratic party’s top election lawyers was hit with sanctions by a federal court for violating ethics rules in a suit against Texas over straight-ticket voting, a rare rebuke for a seasoned attorney following months of tumultuous litigation over the November election.

Marc Elias and other lawyers with Perkins Coie LLP were ordered Friday by the U.S. Court of Appeals in New Orleans to pay legal fees and “double costs” to Texas. The order was issued in a suit Elias filed in August on behalf of the Democrats’ Senate and congressional campaign committees….

Elias in February filed a so-called motion to supplement the record in a case accusing Texas of trying to illegally scrap straight-ticket voting during the pandemic, even though an identical motion had already been denied earlier in the case. The technical violation “unreasonably and vexatiously” dragged out the litigation by creating more work for the court, according to the ruling.

“This inexplicable failure to disclose the earlier denial of their motion violated their duty of candor to the court,” according to the appeals court, one of the most conservative in the country. “If appellees had any confusion about the application of the order, they could have and should have disclosed the previously denied motion in their new motion.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“The Supreme Court’s Voting Rights Act case could gut civil rights protections. Then what?”<https://electionlawblog.org/?p=121178>
Posted on March 15, 2021 7:22 am<https://electionlawblog.org/?p=121178> by Rick Hasen<https://electionlawblog.org/?author=3>

Isaac Cui<https://www.washingtonpost.com/politics/2021/03/15/supreme-courts-voting-rights-act-case-could-gut-civil-rights-protections-then-what/> at The Monkey Cage.
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>

“Is ballot collection, or ‘ballot harvesting,’ good for democracy? We asked 5 experts”<https://electionlawblog.org/?p=121176>
Posted on March 15, 2021 7:16 am<https://electionlawblog.org/?p=121176> by Rick Hasen<https://electionlawblog.org/?author=3>

New<https://news.yahoo.com/ballot-collection-ballot-harvesting-good-125812274.html> at The Conversation.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Massive Facebook study on users’ doubt in vaccines finds a small group appears to play a big role in pushing the skepticism”<https://electionlawblog.org/?p=121174>
Posted on March 15, 2021 7:15 am<https://electionlawblog.org/?p=121174> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/technology/2021/03/14/facebook-vaccine-hesistancy-qanon/>:

Facebook is conducting a vast behind-the-scenes study of doubts expressed by U.S. users about vaccines, a major project that attempts to probe and teach software to identify the medical attitudes of millions of Americans, according to documents obtained by The Washington Post.

The research is a large-scale attempt to understand the spread of ideas that contribute to vaccine hesitancy, or the act of delaying or refusing a vaccination despite its availability, on social media — a primary source of health information for millions of people. It shows how the company is probing ever more nuanced realms of speech, and illustrates how weighing free speech vs. potential for harm is more tenuous than ever for technology companies during a public health crisis….

Some of the early findings are notable: Just 10 out of the 638 population segments contained 50 percent of all vaccine hesitancy content on the platform. And in the population segment with the most vaccine hesitancy, just 111 users contributed half of all vaccine hesitant content….

The research effort also discovered early evidence of significant overlap between communities that are skeptical of vaccines and those affiliated with QAnon<https://www.washingtonpost.com/technology/2021/03/11/with-trump-gone-qanon-groups-focus-fury-attacking-covid-vaccines/?itid=lk_inline_manual_15>, a sprawling set of baseless claims that has radicalized its followers and been associated with violent crimes, according to the documents.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>

Supreme Court Will Hear Major Case on Disclosure of Donors to Nonprofits on April 26<https://electionlawblog.org/?p=121171>
Posted on March 13, 2021 7:14 pm<https://electionlawblog.org/?p=121171> by Rick Hasen<https://electionlawblog.org/?author=3>

SCOTUSBlog <https://www.scotusblog.com/2021/03/justices-to-close-out-term-with-full-april-argument-calendar/> on the argument calendar:

Americans for Prosperity v. Becerra<https://www.scotusblog.com/case-files/cases/americans-for-prosperity-foundation-v-becerra/> and Thomas More Law Center v. Becerra<https://www.scotusblog.com/case-files/cases/thomas-more-law-center-v-becerra/> (consolidated for one hour of oral argument on April 26): Whether a California policy that requires charities to disclose the names and addresses of their major donors violates the First Amendment.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>

“Ranked-Choice Voting Gains Momentum Nationwide”<https://electionlawblog.org/?p=121169>
Posted on March 13, 2021 7:01 pm<https://electionlawblog.org/?p=121169> by Rick Hasen<https://electionlawblog.org/?author=3>

Stateline:<https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2021/03/12/ranked-choice-voting-gains-momentum-nationwide?utm_campaign=03-12-2021+SD&utm_medium=email&utm_source=Pew>

For decades, ranked-choice voting was largely theoretical, discussed in election policy circles but seldom used. Now it is gaining steam around the country: Lawmakers in 29 states<https://www.fairvote.org/2021_state_legislation_advancing_ranked_choice_voting> are considering measures this year that would adopt ranked-choice voting in some form, in local, statewide or presidential primary elections. Many of those bills have bipartisan support. Depending on the state and which party is in power, some bills are sponsored by just Republicans or just Democrats.
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Posted in alternative voting systems<https://electionlawblog.org/?cat=63>

“CNN Poll: Most Americans think election results could lead to political violence in the coming years”<https://electionlawblog.org/?p=121166>
Posted on March 12, 2021 10:04 am<https://electionlawblog.org/?p=121166> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN<https://www.cnn.com/2021/03/12/politics/cnn-poll-political-divisions/index.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+rss%2Fcnn_allpolitics+%28RSS%3A+CNN+-+Politics%29>:

A broad majority of Americans say that political violence in response to election results is likely in the United States in the next few years, according to a new CNN Poll <http://cdn.cnn.com/cnn/2021/images/03/12/rel2c-politicalviolencerepublicandivisions.pdf> conducted by SSRS.Overall, 71% say political violence in response to election results is at least somewhat likely, including 34% who believe it is very likely. The expectation that elections will lead to violence also cuts across party lines (78% of Democrats, 70% of independents and 65% of Republicans describe it as likely).

There is far less partisan agreement over whether American democracy took a blow due to the January 6 attack on the US Capitol. Overall, 62% are concerned that the attack weakened American democracy. But a political divide was evident: Among Democrats (79%) and independents (64%), most say they are concerned that it weakened democracy, but just 36% of Republicans feel the same.

Republican leaders, including Republicans in Congress and former President Donald Trump, receive sharply negative ratings for their handling of the response to the January 6 attack. Overall, 70% disapprove of congressional Republicans’ handling of the response, and 67% disapprove of the way Trump handled it. Democrats, including President Joe Biden and the Democrats in Congress, fare a bit better, with 52% approving and 40% disapproving of Biden’s handling of the aftermath of the attack, while 45% approve and 49% disapprove of the way Democrats in Congress responded.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“The New Pro-Majoritarian Powers”<https://electionlawblog.org/?p=121164>
Posted on March 12, 2021 9:37 am<https://electionlawblog.org/?p=121164> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

I just posted this short article<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3803349>, forthcoming in the California Law Review, on SSRN. It’s a response to Pam Karlan’s Jorde Lecture, “The New Countermajoritarian Difficulty,” whose theme is the array of forces — both judicial and otherwise — that often stifle the will of popular majorities. I largely agree with Karlan’s diagnosis. In the piece, I discuss a pair of non-legislative powers with significant potential to push American politics in a more majoritarian direction. These are (1) each congressional chamber’s authority to judge its members’ elections, and (2) the President’s authority to enforce the Guarantee Clause. Crucially, these powers are subject to neither the Senate filibuster nor judicial review — and so are available even if legislative reform along the lines of H.R. 1 can’t pass or is struck down by the courts. Here’s the abstract:

In her Jorde Lecture, Pam Karlan paints a grim picture of American democracy under siege. Together, the malapportioned Senate, the obsolete Electoral College, rampant voter suppression and gerrymandering, and a Supreme Court happy to greenlight these practices, threaten the very notion of majority rule. I share Karlan’s bleak assessment. I’m also skeptical that conventional tools—judicial decisions and congressional statutes—will solve our current problems. So in this response, I explore a pair of less familiar but possibly more potent alternatives: the authority of each chamber of Congress to judge its members’ elections, and presidential enforcement of the Guarantee Clause. These powers are explicitly delineated by the Constitution. They can’t be stymied by either the Senate’s filibuster or the Court’s hostility. And they hold enormous democratic potential, especially if channeled through the procedures I outline.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Biden urged to pack FEC with ‘pro-enforcement’ members”<https://electionlawblog.org/?p=121161>
Posted on March 12, 2021 7:53 am<https://electionlawblog.org/?p=121161> by Rick Hasen<https://electionlawblog.org/?author=3>

Axios:<https://www.axios.com/fec-biden-campaign-finance-reform-861530cb-0bca-400b-90a3-db495175ac5b.html>

President Biden is being encouraged to effectively pack the nation’s top campaign finance regulator with officials who will more doggedly enforce laws regulating political money, Axios has learned.

Why it matters: The notoriously gridlocked Federal Election Commission has rankled reformers for years. Now some are pushing Biden to abandon protocol by sidestepping congressional Republicans and nominating regulators who will more aggressively enforce campaign finance rules.

What’s new: A three-page memo<https://www.documentcloud.org/documents/20510821-biden-fec-memo>, shared with officials in the White House and obtained by Axios, details a strategy for effectively remaking the FEC.

The memo’s author, a prominent voice in the campaign finance reform world, provided it to Axios on the condition of anonymity and said it was shared with White House staff last month.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Republican Arizona Legislator Says “Not Everybody” Should Be Voting, and that “Quality” of Voting Matters as Much as “Quantity”<https://electionlawblog.org/?p=121159>
Posted on March 11, 2021 9:57 am<https://electionlawblog.org/?p=121159> by Rick Hasen<https://electionlawblog.org/?author=3>

Oh my:<https://www.cnn.com/2021/03/11/politics/arizona-republicans-voter-suppression-bills/index.html>

Rep. John Kavanagh, a Fountain Hills Republican who chairs the Government and Elections Committee that advanced Ugenti-Rita’s measure on a party-line vote Wednesday, said GOP lawmakers are concerned about what happens to ballots automatically sent to people who have moved or have died.

He acknowledged that the concerns about those ballots being cast fraudulently are “anecdotal, because obviously if nobody’s there and they throw it away, you wouldn’t know. And if nobody’s there and they vote it and do a good duplicate of the signature, you wouldn’t know.”

“There’s a fundamental difference between Democrats and Republicans,” Kavanagh said. “Democrats value as many people as possible voting, and they’re willing to risk fraud. Republicans are more concerned about fraud, so we don’t mind putting security measures in that won’t let everybody vote — but everybody shouldn’t be voting.”

He pointed to Democrats’ emphasis on registering voters and pursuing those who have not returned ballots — tactics that Republicans have successfully implemented in other swing states — and said doing so means that “you can greatly influence the outcome of the election if one side pays people to actively and aggressively go out and retrieve those ballots.”

“Not everybody wants to vote, and if somebody is uninterested in voting, that probably means that they’re totally uninformed on the issues,” Kavanagh said. “Quantity is important, but we have to look at the quality of votes, as well.”
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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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