[EL] ELB News and Commentary 3/18/21

[Rick Hasen]

“The Intelligence on Russia Was Clear. It Was Not Always Presented That Way.”<https://electionlawblog.org/?p=121226>
Posted on March 18, 2021 7:27 am<https://electionlawblog.org/?p=121226> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/03/17/us/politics/russia-elections-trump-intelligence.html>

Representative Jason Crow listened during a classified briefing last summer while a top intelligence official said that Russia was hurting Joseph R. Biden Jr.’s campaign to help President Donald J. Trump.

Mr. Crow, Democrat of Colorado, held up an intelligence agency news release from days earlier and demanded to know why it said nothing about Russia’s plans.

“‘When are you going to come out publicly and correct this record?’” Mr. Crow recalled asking the official, William R. Evanina. “‘Because there’s a massive disconnect between what is in your news releases and what you’re saying publicly — because of the pressure of the president.’”

A report released Tuesday made clear that the intelligence community believed that Russia had long attacked Mr. Biden for the benefit of Mr. Trump. But throughout 2020, senior officials bowed to Mr. Trump’s hostility toward any public emphasis of the threat from Russia, and they offered Congress and the public incomplete or misleading portraits of the intelligence on foreign influence in the election.

The picture is complicated. While Mr. Trump’s enmity toward the intelligence community loomed, and his political appointees emphasized the threat from China and Iran, not Russia, career officers did also get key findings about Russian intelligence declassified and disclosed last year.

Soon after that briefing to Congress, Mr. Evanina released details about Kremlin-backed operatives denigrating Mr. Biden, fulfilling the demands of Mr. Crow and other lawmakers. In an interview, Mr. Evanina credited Congress for pushing for more information, but said it took time and effort to get other intelligence officials to declassify the information.

Once made public, the information broke new ground in describing Russian activity, but it also angered the White House.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Many Iowans Are Uncomfortable With a New Voting Restriction, Poll Finds”<https://electionlawblog.org/?p=121224>
Posted on March 18, 2021 7:24 am<https://electionlawblog.org/?p=121224> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2021/03/17/us/politics/iowa-voting-rights.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Postal Service finds no evidence of mail ballot fraud in Pa. case cited by top Republicans”<https://electionlawblog.org/?p=121222>
Posted on March 18, 2021 7:19 am<https://electionlawblog.org/?p=121222> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/business/2021/03/17/usps-ballot-fraud-investigation/?utm_medium=social&utm_campaign=wp_main&utm_source=twitter>

U.S. Postal Service investigators found no evidence to support a Pennsylvania postal worker’s claim that his supervisors had tampered with mail-in ballots, according to an inspector general’s report — allegations cited by top Republicans to press baseless claims of fraud in the presidential election.

Richard Hopkins, a mail carrier in Erie, alleged in November that he overheard the local postmaster discussing plans to backdate ballots received after the Nov. 3 vote and pass them off to election officials as legitimate. Working with Project Veritas, a nonprofit entity that seeks to expose what it says is bias in the mainstream news media, Hopkins publicly released a sworn affidavit recounting those allegations.

Sen. Lindsey O. Graham (R-S.C.) cited Hopkins’s claim in a letter to the Justice Department in Novembercalling for a federal investigation into election results in Pennsylvania, where Joe Biden beat President Donald Trump by more than 81,000 votes, and Democratic candidates outperformed GOP challengers in votes submitted by mail.

Graham and many other congressional Republicans refused to accept the outcome of the election for weeks, even after states audited and certified results.

Then-Attorney General William P. Barr subsequently authorized <https://www.washingtonpost.com/national-security/trump-voting-fraud-william-barr-justice-department/2020/11/09/d57dbe98-22e6-11eb-8672-c281c7a2c96e_story.html?itid=lk_inline_manual_4&itid=lk_inline_manual_9> federal prosecutors to open investigations into credible allegations of voting irregularities and fraud before results were certified, a reversal of long-standing Justice Department policy.

But Hopkins soon recanted, officials from the Postal Service’s Office of Inspector General told members of Congress on Nov. 10, and the new investigation confirmed. In an interview with federal agents, Hopkins “revised his initial claims, eventually stating that he had not heard a conversation about ballots at all — rather he saw the Postmaster and Supervisor having a discussion and assumed it was about fraudulent ballot backdating,” the report states.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Slimming Down Democracy Reform<https://electionlawblog.org/?p=121220>
Posted on March 18, 2021 7:16 am<https://electionlawblog.org/?p=121220> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

Ned Foley and Rick Hasen have each<https://www.washingtonpost.com/opinions/2021/02/04/congress-end-partisan-gerrymandering/> written<https://www.washingtonpost.com/opinions/2021/03/08/saving-voting-rights-is-an-emergency-heres-modest-fix-republicans-might-support/> pieces<https://www.washingtonpost.com/outlook/2021/03/16/hr-1-voting-reforms/> arguing that H.R. 1—the omnibus electoral reform bill recently passed by the House—should be significantly narrowed. Ned would prefer a package combining a ban on partisan gerrymandering (a Democratic priority) with a nationwide voter ID requirement (favored by Republicans). Alternatively, Ned would prefer a nationwide non-retrogression rule, barring states from restricting any existing voting opportunities. For his part, Rick would keep some of H.R. 1’s voting and redistricting provisions, add a new coverage formula for the Voting Rights Act, but scrap H.R. 1’s sections on campaign finance, ex-felon reenfranchisement, Supreme Court ethics, and presidential tax returns.

Ned’s and Rick’s proposals are both motivated, in part, by a legislative calculation. They think their ideas would be more likely than H.R. 1 to attract the votes of Senate Republicans—maybe even the ten such votes it would take to break a filibuster. Ned writes that his package could “secure the necessary 60 votes for Senate passage.” Similarly, Rick argues that his blend of parts of H.R. 1 with a new VRA coverage formula could “assur[e] that there are more than 50 senators—including perhaps some moderate Republicans—to support the bill.”

Now, Ned and Rick might be right. Maybe H.R. 1 won’t win significant Senate Republican backing—but their proposals would. Every shred of evidence I’ve seen, however, suggests that their ideas would get exactly as many Senate Republican votes as H.R. 1: zero. No Senate Republican has expressed any interest in (much less support for) assigning congressional redistricting to independent commissions: a key plank of both Ned’s and Rick’s compromises. Nor has any Senate Republican advocated any new federal measure protecting the franchise (again, a crucial element of both Ned’s and Rick’s packages). To the contrary, elite Republican opinion has been virtually unanimous in defending the prerogative of states to burden voting as they see fit. And when the House debated<https://clerk.house.gov/Votes/2019654> a new VRA coverage formula in 2019, just one Republican voted in favor. Mitch McConnell then consigned the bill to a quiet death, declining to take any Senate action on it.

The implausibility of attracting significant Senate Republican support is nicely illustrated by National Review writer Dan McLaughlin’s response<https://www.nationalreview.com/corner/a-more-modest-version-of-h-r-1-is-still-not-quite-modest-enough/> to Rick’s column. Requiring states to offer at least two weeks of early voting? Only if federal law “also impose[s] maximums” on early voting. Enacting a new VRA coverage formula? “[T]he entire preclearance project is a bad idea because it gives too much arbitrary power to the federal executive branch.” Establishing independent redistricting commissions? “This is a non-starter; conservatives simply do not trust unelected ‘nonpartisan’ entities.” Which Senate Republican(s) would react differently from McLaughlin? Especially in the face of overwhelming pressure to hold the party line and deny Democrats a victory on an issue as important as electoral reform?

To be fair, Rick has another legislative rationale for his proposal: maintaining the unity of Senate Democrats. In his view, excising H.R. 1’s provisions on campaign finance, Supreme Court ethics, and presidential tax returns would prevent moderates like Joe Manchin and Kyrsten Sinema from defecting. But I’m unaware of any evidence that these policies threaten to “pull apart majority support in the Senate.” Campaign finance reform is favored<https://www.pewresearch.org/fact-tank/2018/05/08/most-americans-want-to-limit-campaign-spending-say-big-donors-have-greater-political-influence/> by a supermajority of the public. This supermajority includes Manchin, who signed into law a public financing program as governor of West Virginia and has cosponsored a Senate bill calling for small donor matching. As for Supreme Court ethics and presidential tax returns, they’re tiny pieces of H.R. 1, accounting for just two of its nearly four hundred sections. It defies belief that any Senate Democrat would scuttle the whole project over such relative trivialities.

That said, I agree with Rick that it’s almost certain that not every Senate Democrat supports every aspect of H.R. 1. Fortunately, the Senate’s choices aren’t limited to accepting H.R. 1 as is or letting the bill collapse. The Senate can also amend the bill—extensively—to ensure that Manchin’s and Sinema’s and other Democrats’ concerns are fully addressed. This critical revision process is only now beginning. Where it will lead is anyone’s guess. It could be a set of policies like the ones Ned or Rick outlined. Or it could be any of a thousand other destinations. The point is that Senate Democrats themselves are the best judges of what they can and can’t tolerate in an electoral reform bill. Outside efforts to predict their preferences are likely to be inaccurate.

Two final cautions about enacting a new VRA coverage formula instead of H.R. 1 (which neither Ned nor Rick recommends). First, reinstituting preclearance is at least as legally controversial as anything in H.R. 1. While I couldn’t disagree more strongly with the Shelby County Court, it did say that the argument that “the preclearance requirement [itself] is now unconstitutional” has “a good deal of force.” Second, as potent as Section 5 of the VRA was, it didn’t reach (1) most of the U.S. outside the South, or (2) most partisan gerrymanders in the South. So an America with a revived preclearance regime—but no other reforms—would be one where bad actors could still freely suppress votes and gerrymander in most of the country, and where gerrymandering would still run rampant even in the South.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Pelosi’s push for 9/11-style Capitol riot commission stalls in political quicksand”<https://electionlawblog.org/?p=121218>
Posted on March 18, 2021 7:08 am<https://electionlawblog.org/?p=121218> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/news/2021/03/17/pelosis-9-11-style-commission-on-capitol-riot-stalls-in-political-quicksand-476801>:

Surrounded by broken glass in a defaced Capitol on the night of Jan. 6, Speaker Nancy Pelosi conferred with a senior House Republican about a bipartisan commission that would investigate the attack on Congress. Ten weeks later, those talks have all but collapsed.

Pelosi is now eyeing a Plan B: tapping three House committees, run by Democrats, to do their own probe of how a violent, pro-Trump mob managed to overwhelm police and terrorize legislators.

What seemed like a no-brainer at the time — a 9/11-Commission-style review of the origins of the mob, the white nationalists who joined it and the security failures that allowed it to briefly occupy the Capitol — has instead become the latest theater for dysfunction on Capitol Hill as the two parties squabble over the panel’s scope and partisan balance. The commission’s prospects have also dimmed thanks to a relatively well-functioning Senate inquiry that’s already helped provide the sort of answers an independent entity might take months to produce.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“US intelligence report says election fraud claims ‘will almost certainly’ spur more violence by domestic extremists”<https://electionlawblog.org/?p=121216>
Posted on March 18, 2021 6:59 am<https://electionlawblog.org/?p=121216> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN:<https://www.cnn.com/2021/03/17/politics/domestic-violent-extremism-threat-assessment/index.html>

US intelligence agencies believe that “narratives of fraud in the recent general election” and “the emboldening impact of the violent breach of the US Capitol” will “almost certainly” spur domestic extremists to try to engage in additional acts of violence this year, according to the unclassified summary<https://www.cnn.com/2021/03/17/politics/read-odni-joint-assessment-domestic-extremism-threat/index.html> of a new joint assessment released Wednesday.

That warning was included in a comprehensive classified assessment of domestic violent extremism produced by the Office of the Director of National Intelligence, the Department of Homeland Security and the Department of Justice, which was ordered by the White House in January.

The full report was transmitted to the White House and Congress. The summary was released on the same day that DHS Secretary Alejandro Mayorkas told lawmakers domestic violent extremism is the “greatest threat”<https://www.cnn.com/2021/03/17/politics/lone-wolf-domestic-violent-extremism-greatest-threat-dhs/index.html> to the US — a clear reminder that federal officials remain veryconcerned about the potential for more violence in the coming months.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Northam restores voting rights for 69,000 Virginians on probation for felonies, under new policy”<https://electionlawblog.org/?p=121214>
Posted on March 17, 2021 6:05 pm<https://electionlawblog.org/?p=121214> by Rick Hasen<https://electionlawblog.org/?author=3>

Richmond.com reports.<https://richmond.com/news/state-and-regional/northam-restores-voting-rights-for-69-000-virginians-on-probation-for-felonies-under-new-policy/article_6a792ca8-47a0-5355-81cf-c9c49c2f71b0.html?utm_campaign=03-17-2021+SD&utm_medium=email&utm_source=Pew#tracking-source=home-top-story-1>
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“‘Dark money’ topped $1 billion in 2020, largely boosting Democrats”<https://electionlawblog.org/?p=121212>
Posted on March 17, 2021 5:58 pm<https://electionlawblog.org/?p=121212> by Rick Hasen<https://electionlawblog.org/?author=3>

Open Secrets:<https://www.opensecrets.org/news/2021/03/one-billion-dark-money-2020-electioncycle/?utm_source=reddit&utm_medium=social&utm_campaign=r%2F_darkmon-1b-03%2F12%2F20>

The 2020 election saw more than $1 billion in “dark money”<https://www.opensecrets.org/dark-money/basics> spending at the federal level, a massive sum driven by an explosion of secret donations boosting Democrats in a historically expensive<https://www.opensecrets.org/news/2021/02/2020-cycle-cost-14p4-billion-doubling-16/> cycle.

That’s according to an estimate from OpenSecrets. The billion-dollar sum includes a whopping $660 million in donations from opaque political nonprofits and shell companies to outside groups. In 2020, dark money groups preferred to bankroll closely-tied super PACs<https://www.opensecrets.org/outsidespending/summ.php?chrt=V&type=S> rather than spend the money themselves — politically active nonprofits that do not disclose their donors reported roughly $88 million in direct election spending<https://www.opensecrets.org/outsidespending/summ.php?cycle=2020&chrt=V&disp=O&type=U> to the Federal Election Commission. The remainder of the total is made up of spending on “issue ads”<https://www.youtube.com/watch?v=Zca1Oe5uob8> targeting candidates online and on the airwaves.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Will the Fight Over H.R. 1 Grease the Wheels for VRA Restoration in H.R. 4 (John Lewis Voting Rights Act)?<https://electionlawblog.org/?p=121210>
Posted on March 17, 2021 11:12 am<https://electionlawblog.org/?p=121210> by Rick Hasen<https://electionlawblog.org/?author=3>

That’s the suggestion made to Tierney Sneed in this piece<https://talkingpointsmemo.com/prime/for-the-people-act-break-up-debate>:

Also it’s worth remembering that legislation that would restore the Voting Rights Act — among the priorities Hasen urged Democrats to narrow their focus on — is already moving along separately from S1. Officially, that decision was part of a legal strategy: Democrats believe that by holding several more hearings establishing a congressional record before passing the VRA bill in the House, they can better buttress it against the kind of legal attack that gutted the VRA in 2013.

But, quietly, some voting rights advocates acknowledge that that bill has a better shot of getting Republican support than S1. Even still, they believe having a big, messy fight over S1 will grease the wheels for when the VRA restoration measure lands in the Senate.
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Georgia Law Review Symposium March 25 on “150 Years of Voting In America”<https://electionlawblog.org/?p=121208>
Posted on March 17, 2021 7:47 am<https://electionlawblog.org/?p=121208> by Rick Hasen<https://electionlawblog.org/?author=3>

This looks terrific<https://www.georgialawreview.org/pages/163-symposium>:

Register for the Symposium here: https://estore.uga.edu/C27063_ustores/web/store_cat.jsp?STOREID=152&CATID=1261

Panel 1: The Right To Vote

Panelists:

Gilda R. Daniels   Associate Professor of Law, University of Baltimore School of Law     Atiba Ellis  Professor of Law, Marquette University Law School    Anthony Michael Kreis  Assistant Professor of Law, Georgia State University College of Law    Bryan Sells  Attorney, The Law Office of Bryan L. Sells, LLC

Panel 2: The Electoral College and Electoral College Act

Panelists:

Wilfred Codrington III  Assistant Professor of Law, Brooklyn Law School    Derek Muller   Professor of Law, University of Iowa College of Law   David Schultz  Distinguished University Professor of Political Science and Legal Studies, Hamline University   Sachin Varghese  Partner, Bondurant Mixson & Elmore LLP

Panel 3: The Future of Voting Rights

Introductory Speaker:

The Honorable Representative Nikema Williams   Georgia 5th Congressional District, United States House of Representatives    Panelists:

Joshua Douglas  Ashland, Inc.-Spears Distinguished Research Professor of Law, University of Kentucky School of Law    Joyce Gist Lewis  Partner, Krevolin & Horst, LLC

Richard Pildes  Sudler Family Professor of Constitutional Law, New York University School of Law

Keynote

Leader Stacey Abrams  Chair, Fair Fight
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“The Post publishes correction on Trump call with Georgia investigator”<https://electionlawblog.org/?p=121206>
Posted on March 16, 2021 1:22 pm<https://electionlawblog.org/?p=121206> by Rick Hasen<https://electionlawblog.org/?author=3>

Eric Wemple:<https://www.washingtonpost.com/opinions/2021/03/16/washington-post-correction-trump-call-georgia-investigator/>

On Jan. 9, The Post reported that then-President Donald Trump, in a call with Georgia’s lead elections investigator, Frances Watson, had instructed her to “find the fraud.” He mentioned that she could become a “national hero,” reported the newspaper.

In both cases, the quotes were wrong, as The Post has acknowledged in a correction<https://www.washingtonpost.com/politics/trump-call-georgia-investigator/2021/01/09/7a55c7fa-51cf-11eb-83e3-322644d82356_story.html?itid=lk_inline_manual_4> to the story. “Trump did not tell the investigator to ‘find the fraud’ or say she would be ‘a national hero’ if she did so. Instead, Trump urged the investigator to scrutinize ballots in Fulton County, Ga., asserting she would find ‘dishonesty’ there. He also told her that she had ‘the most important job in the country right now,’”reads the correction, in part….

We asked The Post about claims that the newspaper’s action amounts to a retraction<https://twitter.com/DavidShafer/status/1371531429427970055> and about its reliance on one source for the quotes. In a statement, The Post responded:

We corrected the story and published a separate news story last week — at the top of our site and on the front page — after we learned that our source had not been precise in relaying then President Trump’s words. We are not retracting our January story because it conveyed the substance of Trump’s attempt to influence the work of Georgia’s elections investigators.

That, it did. Misreporting the words of the highest elected official in the land is a serious lapse — and one that, in this case, seems so unnecessary: The existence of the call itself is a towering exclusive. When it comes to phone calls, the only good sources are the ones who are dialed in. The former president’s partisans will attempt to memorialize The Post’s story as a fabrication or “fake news.” But a central fact remains: As the Journal’s recording attests, Trump behaved with all the crooked intent and suggestion that he brought to every other crisis of his presidency
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“Russia, Iran sought to influence 2020 election, but no foreign government tried to change votes, U.S. says”<https://electionlawblog.org/?p=121204>
Posted on March 16, 2021 1:12 pm<https://electionlawblog.org/?p=121204> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/national-security/intelligence-assessment-2020-election-russia-iran/2021/03/16/a2650478-8662-11eb-bfdf-4d36dab83a6d_story.html>

Russia and Iran both sought to influence the 2020 U.S. election, but no foreign government attempted to change votes, alter ballots or reporting results, the intelligence community said Tuesday.

The document by the Office of the Director of National Intelligence, the first U.S. government report on the matter since November’s election, supports earlier assessments by U.S. officials.

NYT<https://www.nytimes.com/live/2021/03/16/us/biden-news-today#putin-authorized-extensive-election-influence-campaign-intelligence-report-says>:

President Vladimir V. Putin of Russia authorized extensive efforts to interfere in the American presidential election to denigrate the candidacy of Joseph R. Biden Jr., including intelligence operations to influence people close to former President Donald J. Trump, according to a declassified intelligence report<https://int.nyt.com/data/documenttools/2021-intelligence-community-election-interference-assessment/abd0346ebdd93e1e/full.pdf> released Tuesday.

The report did not name those people but seemed to be a reference to the work of Mr. Trump’s former personal lawyer Rudolph W. Giuliani, who relentlessly pushed allegations of corruption about Mr. Biden and his family involving Ukraine.

“Russian state and proxy actors who all serve the Kremlin’s interests worked to affect U.S. public perceptions in a consistent manner,” the report said.

The declassified report represented the most comprehensive intelligence assessment of foreign efforts to influence the 2020 vote. Besides Russia, Iran and other countries sought to influence the election, the report said. China considered efforts to influence the presidential vote, but ultimately concluded that any such operation would fail and most likely backfire, intelligence officials concluded.

A companion report<https://int.nyt.com/data/documenttools/2021-justice-department-and-homeland-security-election-interference-report/d7fd65924c984439/full.pdf> by the Departments of Justice and Homeland Security also rejected false allegations promoted by Mr. Trump’s allies in the weeks after the election that Venezuela or other foreign countries defrauded the election.
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--
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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