[EL] ELB News and Commentary 5/6/21

[Rick Hasen]

“Observers report ballots and laptop computers have been left unattended in Arizona recount, according to secretary of state”<https://electionlawblog.org/?p=121988>
Posted on May 6, 2021 7:09 am<https://electionlawblog.org/?p=121988> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/politics/arizona-recount-observers/2021/05/05/b807c990-adc3-11eb-b476-c3b287e52a01_story.html>
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Despite GOP rhetoric, there have been fewer than two dozen charged cases of voter fraud since the election; One person has faced charges for every 10 million votes cast”<https://electionlawblog.org/?p=121986>
Posted on May 6, 2021 7:07 am<https://electionlawblog.org/?p=121986> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/2021/05/04/despite-gop-rhetoric-there-have-been-fewer-than-two-dozen-charged-cases-voter-fraud-since-election/>:

Those incidents:
·         Thurman, above.
·         A man and woman from Austin who allegedly<https://www.dailyherald.com/news/20210309/5-charged-with-election-fraud-in-dupage-county> tried to vote in Illinois by claiming residence in that state. It’s not clear whether they obtained ballots.
·         A man in Lisle, Ill., who allegedly<https://www.dailyherald.com/news/20210309/5-charged-with-election-fraud-in-dupage-county> signed a ballot certification with someone else’s name.
·         A man in Carol Stream, Ill., who allegedly<https://www.dailyherald.com/news/20210309/5-charged-with-election-fraud-in-dupage-county> filled out an online ballot application for someone who shared his last name. It’s not clear whether the ballot was provided.
·         A woman in Naperville, Ill., who allegedly<https://www.dailyherald.com/news/20210309/5-charged-with-election-fraud-in-dupage-county> signed a ballot certification with someone else’s name.
·         A woman in Buckingham, Pa., who allegedly<http://levittownnow.com/2021/05/01/two-bucks-county-women-to-be-charged-with-voter-fraud/> signed a ballot declaration for her dead mother.
·         A woman in Quakertown, Pa., who claims<http://levittownnow.com/2021/05/01/two-bucks-county-women-to-be-charged-with-voter-fraud/> to have accidentally mailed a ballot for her mother after she died.
·         A woman from Milford, Maine, who reported<https://apnews.com/article/maine-election-2020-6586e91bcae342d46e6223e1425d5f09> herself for voting twice, once by absentee at home and once in person at college.
·         A woman from Bowdoinham, Maine, who allegedly<https://apnews.com/article/maine-election-2020-6586e91bcae342d46e6223e1425d5f09> voted with an absentee ballot for a former roommate.
·         A woman in Cedarburg, Wis., who allegedly<https://www.jsonline.com/story/news/politics/2020/12/14/cedarburg-wisconsin-woman-christine-daikawa-charged-voter-fraud-appears-court/6538445002/> submitted a ballot for a dead person.
·         A man in Stockton, N.J., who allegedly<https://www.mycentraljersey.com/story/news/local/hunterdon-county/2020/11/07/hunterdon-county-man-charged-voter-fraud/6205206002/> submitted a ballot for a dead person.
·         A man in Carteret, N.J., who allegedly<https://www.mycentraljersey.com/story/news/crime/2021/01/28/carteret-nj-gop-mayor-candidate-frederick-gattuso-voter-fraud/4300714001/> voted twice with different names.
·         A man in Woodbridge, N.J., who allegedly<https://www.ahherald.com/newsbrief/local-news/28312-highlands-man-charged-with-voter-fraud,-used-business-address> registered at his business instead of his home.
·         A man from Media, Pa., who admitted<https://www.washingtonpost.com/nation/2021/05/04/pennsylvania-bruce-bartman-voter-fraud/?itid=lk_inline_manual_27> to casting a ballot for his dead mother.
·         A man from Canton, Mich., who admitted<https://www.audacy.com/wwjnewsradio/news/local/canton-man-pleads-guilty-to-misdemeanor-in-voter-fraud-case> to filling out his daughter’s ballot when she was at college.

That’s it. That’s the total.

You’ll notice that none of these incidents hints at some deeper conspiracy. There’s no allegation that any of these people cast hundreds of ballots for their preferred candidates; in most cases, the allegation centers on casting a ballot for someone known to the person facing charges. It’s not even the case that all of these ballots were necessarily cast for Joe Biden. The man from Media, Pa., voted for Trump. In most cases, it’s not clear for whom the vote was intended.

The inevitable response to this from die-hard advocates of the idea that rampant fraud exists will be some sort of insistence that these are only the cases we know about, that this is the visible part of the iceberg. It’s the sort of claim that sustains the Loch Ness tourist industry or that prompted politicians in Russia to stage fake yeti sightings<https://nypost.com/2021/04/09/russian-official-admits-to-staging-bogus-yeti-sightings/>. The lure of the undetectable is part of the exercise.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


Florida: “DeSantis shuts out reporters as he signs voting restrictions into Florida law”<https://electionlawblog.org/?p=121984>
Posted on May 6, 2021 7:04 am<https://electionlawblog.org/?p=121984> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/05/06/us/politics/desantis-florida-voting-law.html>

Gov. Ron DeSantis of Florida signed new voting restrictions<https://www.nytimes.com/2021/04/29/us/politics/florida-voting-rights-bill.html> into law on Thursday that will make it more difficult for people to vote by mail and use popular ballot drop boxes, a move similar to other states controlled by Republicans that have limited access to the ballot after former President Donald J. Trump falsely claimed that the 2020 election he lost was stolen.

The law will add more identification requirements for voters requesting absentee ballots and require them to request those ballots for each election, rather than sign up to receive them automatically.

Mr. DeSantis enacted the legislation even after he had promoted Florida’s handling of the November elections. Mr. Trump won the state by three percentage points<https://www.nytimes.com/interactive/2020/11/03/us/elections/results-florida.html>.

The governor gave Fox News, his preferred cable news outlet, an exclusive to broadcast the bill signing ceremony from West Palm Beach on Thursday morning. Supporters of Mr. DeSantis gathered inside a Hilton near the airport, donning DeSantis and Trump campaign gear. Before they entered, some people waved Trump-DeSantis and DeSantis 2024 banners, according to photos on social media shared by journalists locked outside the doors.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Arizona’s Republican-Run Election Audit Is Now Looking for Bamboo-Laced ‘China Ballots'”<https://electionlawblog.org/?p=121982>
Posted on May 6, 2021 7:02 am<https://electionlawblog.org/?p=121982> by Rick Hasen<https://electionlawblog.org/?author=3>

Jeremy Stahl<https://slate.com/news-and-politics/2021/05/arizona-republican-audit-bamboo-ballots-china.html> for Slate:

On Wednesday, a member of the Arizona election audit team that has been heavily touted by former President Donald Trump revealed that its examination of the 2020 vote in Maricopa County will include a “forensic” analysis of ballots to determine if the paper is made of bamboo—in order to determine whether or not China delivered tens of thousands of fraudulent ballots to tip the state to Joe Biden.

If that sounds much too crazy for an audit that was initiated by the Republican-led Arizona legislature and whose communications are being spearheaded by Republican former secretary of state, Ken Bennett, it very much is not.

On Wednesday, audit liaison John Brakey told a reporter from the local CBS affiliate in Phoenix that the audit team was checking to see if 40,000 Biden ballots were smuggled into Arizona from Asia by checking the paper’s fiber to try to detect bamboo..

“There’s accusations that 40,000 ballots were flown in and stuffed into the box and it came from the Southeast part of the world, Asia. And what they’re doing is to find out if there’s bamboo in the paper,” Brakey told Dennis Welch of CBS5 News.

Welch asked Brakey a series of follow-ups, such as “Why do you check for bamboo?” and “This is part of what you’re looking for?” and he answered that others were searching for the bamboo ballots because “people in Southeast Asia…use bamboo in their paper processing” and “this is part of the mystery that we want to un-gaslight people about.”

As Slate put it, this is literal pulp fiction.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“US Justice Department worried about Arizona Senate recount”<https://electionlawblog.org/?p=121980>
Posted on May 6, 2021 6:59 am<https://electionlawblog.org/?p=121980> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://apnews.com/article/arizona-election-recounts-election-2020-government-and-politics-ef60fc349bed3296c44fa158210da3e6>

 The U.S. Department of Justice expressed concern Wednesday about ballot security and potential voter intimidation arising from the Republican-controlled Arizona Senate’s unprecedented private recount of the 2020 presidential election results in Maricopa County.

In a letter<https://assets.documentcloud.org/documents/20698904/doj-letter-to-fann-5-5-21.pdf> to GOP Senate President Karen Fann, the head of the Justice Department’s Civil Rights Division said the Senate’s farming out of 2.1 million ballots from the state’s most populous county to a contractor may run afoul of federal law requiring ballots to remain in the control of elections officials for 22 months.

And Principal Deputy Assistant Attorney General Pamela S. Karlan said that the Senate contractor’s plans to directly contact voters could amount to illegal voter intimidation.

“Past experience with similar investigative efforts around the country has raised concerns that they can be directed at minority voters, which potentially can implicate the anti-intimidation prohibitions of the Voting Rights Act,” Karlan wrote. “Such investigative efforts can have a significant intimidating effect on qualified voters that can deter them from seeking to vote in the future.”
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Posted in chicanery<https://electionlawblog.org/?cat=12>, Department of Justice<https://electionlawblog.org/?cat=26>


“In Turning on Liz Cheney, G.O.P. Bows to Trump’s Election Lies”<https://electionlawblog.org/?p=121978>
Posted on May 6, 2021 6:56 am<https://electionlawblog.org/?p=121978> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/05/05/us/politics/liz-cheney-elise-stefanik.html>

While she began as one of the more moderate members of the Republican Conference — her voting record<https://heritageaction.com/scorecard/members/S001196/115> is far less conservative than Ms. Cheney’s<https://heritageaction.com/scorecard/members/C001109/116>, according to the conservative Heritage Foundation — Ms. Stefanik became one of Mr. Trump’s most strident loyalists. That role has buoyed her rapid ascension and brought in millions of dollars in campaign donations.

In a lengthy, error-riddled statement<https://www.timesunion.com/news/article/Stefanik-explains-why-she-will-object-to-15850046.php> published on Jan. 6 explaining why she would vote to invalidate the election, Ms. Stefanik repeated a number of Mr. Trump’s baseless claims of widespread improprieties, including incorrectly claiming that “more than 140,000 votes came from underage, deceased and otherwise unauthorized voters” in one county in Georgia alone.

Her metamorphosis mirrored that of her upstate New York district, where voters had supported a string of Democratic presidential candidates — including Barack Obama twice — before throwing their backing to Mr. Trump in 2016.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Facebook Ducks the Big Issue”<https://electionlawblog.org/?p=121976>
Posted on May 6, 2021 6:52 am<https://electionlawblog.org/?p=121976> by Rick Hasen<https://electionlawblog.org/?author=3>

David Leonhardt<https://www.nytimes.com/2021/05/06/briefing/facebook-suspension-trump-mark-zuckerberg.html> NYT newsletter:

Facebook’s suspension of Donald Trump will continue for now<https://www.nytimes.com/2021/05/05/technology/facebook-trump-ban-upheld.html>, the company announced yesterday. But it still has not resolved the central problem that Trump has created for social media platforms and, by extension, American democracy.

The problem is that Trump lies<https://abcnews.go.com/Politics/legacy-lies-trump-weaponized-mistruths-presidency/story?id=75335019> almost<https://www.politifact.com/personalities/donald-trump/> constantly<https://www.washingtonpost.com/politics/2021/01/24/trumps-false-or-misleading-claims-total-30573-over-four-years/>. Unlike many other politicians — including other recent presidents, from both parties<https://www.nytimes.com/interactive/2017/12/14/opinion/sunday/trump-lies-obama-who-is-worse.html> — he continues to make false statements even after other people have documented<https://www.cnn.com/2021/01/19/politics/fact-check-daniel-dale-reflections-fact-checking-trump/index.html> their falseness. This behavior undermines the healthy functioning of American democracy, particularly because Trump has such a large following.

His lies about the 2020 election are the clearest example. They have led tens of millions of people to believe a made-up story about how Joe Biden won. They have become a loyalty test <https://www.nytimes.com/2021/05/05/technology/facebook-oversight-board-decision-reaction.html> within the Republican Party.

In Congress, Republicans are moving to oust Liz Cheney<https://www.nytimes.com/2021/05/05/us/politics/republicans-liz-cheney-trump.html> as one of their leaders after she said that people who repeated Trump’s “big lie” were “turning their back on the rule of law, and poisoning our democratic system.” In several states, Republican legislators are using Trump’s made-up story to justify new laws that make voting more difficult<https://www.nytimes.com/2021/03/30/podcasts/the-daily/voting-rights-georgia.html>, especially in heavily Democratic areas. There is a direct connection<https://www.nytimes.com/2021/02/27/us/republican-voter-suppression.html> between Trump’s lies about the election and the weakening of voting rights….

The issue here isn’t the enduring philosophical question of what constitutes truth; it’s whether Facebook is willing to tolerate obvious and influential lies. So far, the company has decided that it is. It has drawn a line somewhere between blatant untruths and incitement to violence.

“Facebook’s approach to Trump’s attempts to undermine confidence in the integrity of the election was weak and ineffective,” Richard Hasen<https://electionlawblog.org/>, a law professor at the University of California, Irvine, told me. When Trump last year falsely described mail-in voting as corrupt, for example, Facebook left up the post and instead added a link to a website where people could find general election information, as Hasen describes in his forthcoming book, “Cheap Speech.” Twitter, he notes, has taken a more aggressive position<https://blog.twitter.com/en_us/topics/company/2020/suspension.html>.

Yesterday’s decision officially came from a Facebook-appointed panel of speech experts that the company calls its Oversight Board. The board has no actual power<https://twitter.com/BCAppelbaum/status/1389646173296906244> to regulate the company, but it may have some influence on Facebook executives. In their statement<https://www.oversightboard.com/decision/FB-691QAMHJ>, board members criticized Facebook for levying an indefinite suspension on Trump and said it should choose in the next six months between a permanent ban and a time-limited one: “In applying a vague, standardless penalty and then referring this case to the Board to resolve, Facebook seeks to avoid its responsibilities,” the board wrote.
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Create More Competitive Districts II: A Response to Lee Drutman<https://electionlawblog.org/?p=121974>
Posted on May 5, 2021 10:34 am<https://electionlawblog.org/?p=121974> by Richard Pildes<https://electionlawblog.org/?author=7>

In my recent Real Clear Politics essay<https://www.realclearpolitics.com/articles/2021/04/29/create_more_competitive_districts_to_limit_extremism_145672.html>, I argued that putting more weight on competitive districts in the redistricting process would be one means of mitigating the forces of political extremism. As I said <https://electionlawblog.org/?p=120978> when I first put forward a general program of political reforms to mitigate extremism, I knew that were would be counter-arguments to some of my proposals.

The excellent political scientist, Lee Drutman, did indeed tweet out that members from safe seats are no more extreme than those from competitive seats, a view shared among some or many political scientists. Since my reasons for disagreeing with that view take more than 280 characters to explain (and I’m not on twitter, in any event), I waited until I had an opportunity for a fuller explanation (excerpt below).

I think this issue is a complex and important one. As you’ll see, there are competing views even within political science, though I’m not sure these different views have been put into direct dialogue before. And legislators, as well as journalists, believe members from safe seats tend to behave differently from those who come from competitive districts. I’m sure there is much more to be said about this issue. Here’s what I said about it in that RCP essay:

Some academics, however, dissent from the view that competitive districts marginalize ideological extremism and foster moderation in Congress. This disagreement exposes a remarkable disjuncture between these political scientists and journalists who actually cover Congress. Stories with headlines such as “House Democrats in Swing Districts Are Torn Over Impeachment<https://www.wsj.com/articles/pelosi-holds-meeting-amid-more-calls-for-impeachment-proceedings-against-trump-11558533354>” are common. Beyond the headlines, stories<https://www.washingtonpost.com/politics/house-democrats-pelosi-election/2020/11/05/1ddae5ca-1f6e-11eb-90dd-abd0f7086a91_story.html> covering Congress and state legislatures routinely<https://www.nytimes.com/2021/04/25/us/Election-audit-Arizona-Republicans.html?action=click&module=Top%20Stories&pgtype=Homepage> describe the more moderate positions of members from swing districts compared to those in other seats. That there is often a difference between the ideological views of members from swing districts and others is a simple matter of fact among those who cover Congress most closely. Indeed, legislators themselves strongly believe this<https://www.washingtonpost.com/opinions/hate-our-polarized-politics-why-you-cant-blame-gerrymandering/2012/10/26/c2794552-1d80-11e2-9cd5-b55c38388962_story.html>, as John Boehner’s recent memoir describes in detail.

Yet the view among this dissenting group of political scientists in recent years is exactly the opposite: that it does not matter whether members are elected from competitive seats or safe seats, because all members of each party vote similarly, regardless of the type of district from which they are elected (see here<https://legacy.voteview.com/dwnomin.htm> and here for two important studies). How can there be such a disconnect between those who cover Congress up close and certain social scientists who survey Congress from a greater distance?

One possible answer: These political scientists define the ideology of members of Congress or state legislatures by aggregating all (and only) the roll-call votes taken on bills. This is the easiest data point to measure, but as with quantification in general, basing analysis on the dimensions easiest to quantify can distort reality. For many years now, most legislation has not been put together at the committee level but in leadership-led centralized processes. Behind-the-scenes negotiations among party members take place at this level, when party leaders broker a package that best accommodates the distinct interests within the party. This centralized process also enables party leaders to logroll across bills, giving resistant members on one bill what they want in another bill, thus bringing them along to support both measures. By the time a bill is put on the floor for a vote, the party has largely united behind that package. And if party leaders can’t get sufficient party consensus on a bill, they never put it to a floor vote.

Counting up only the final roll-call votes obscures the differences in policy preferences between centrists and the wings of the party. As congressional scholars Frances Lee and James Curry put it<https://press.uchicago.edu/ucp/books/book/chicago/L/bo51795068.html>, “the roll-call vote is censored”; the reality is that the parties “contend with much more intraparty conflict than one might expect from roll-call votes.”

In addition, much of roll-call voting in the modern Congress is designed as party messaging. These are votes taken to sharpen and highlight major party differences, rather than to support bills that have a realistic prospect of being enacted. As Lee documents<https://press.uchicago.edu/ucp/books/book/chicago/I/bo24732099.html>, “Very little actual legislation becomes law by narrow or partisan majorities, but the Congress nevertheless takes many roll call votes that pit one party against the other.” Not surprisingly, these messaging roll-call votes display a high degree of party unity – that is part of their point, after all. Yet when political scientists combine all roll-call votes into a single number – without distinguishing bills on minor versus major issues or bills that are purely messaging legislation – they inevitably obscure genuine differences within the parties on significant legislation.

Indeed, sophisticated new work<https://scholar.princeton.edu/sites/default/files/out-of-district_contributors_web_1.pdf> in political science is already starting to undercut the view of those analysts who doubt that safe seats foster extremism. Rather than treat roll-call voting on all issues as the same, Professors Brandice Canes-Wrone and Kenneth Miller focus on only the most significant bills a given Congress votes on, which in their study range from two to six bills a year. On these bills, they find that members in safe seats respond far more to their most polarized donors than do members in competitive districts. This is true for a broad set of issues, including capital gains taxes, partial-birth abortion, the Affordable Care Act, or other highly salient issues.

More specifically, Canes-Wrone and Miller find, first, that national donors are much more polarized than donors from within a member’s district. They then find that when seats are competitive, representatives respond much more to the preferences of their constituents, but that when seats are safe, representatives are more responsive to the preferences of this highly polarized national donor class. In other words, in safe seats, members can defect more from their district’s preferences and endorse the more extreme positions of their national donors. This is not surprising: If you’re going to win a safe seat with 75% of the vote, you have a lot of slack to satisfy your national donors with positions that your constituents don’t support, even if your victory margin winds up dropping by 10 points next time. But if your district is competitive, you can’t afford to stray much from the preferences of your constituents. This is why I have also argued<https://www.yalelawjournal.org/forum/small-donor-based-campaign-finance-reform-and-political-polarization> that to reduce extremism, a public financing system that provides $6 for every $1 a candidate raises from small donors – another aspect of H.R. 1 – should limit those matching funds to small donors from within a member’s district.

In sum, those who cover Congress most closely, congressional members themselves, and some cutting-edge work in political science all confirm that members from safe seats tend to be more extreme than those elected from competitive districts. One way to counter political extremism, as new districts for Congress and state legislatures get drawn across the country, is to insist on the importance of creating competitive districts.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Listen to My Conversation with Eric Segall on His “Supreme Myths” Podcast<https://electionlawblog.org/?p=121971>
Posted on May 5, 2021 9:41 am<https://electionlawblog.org/?p=121971> by Rick Hasen<https://electionlawblog.org/?author=3>

Episode 32<https://podcasts.apple.com/us/podcast/professor-rick-hasen/id1523903890?i=1000520141798>: Professor Rick Hasen stopped by Supreme Myths to talk about voting rights and suppression, elections, the Scalia Myth, and other important issues.
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“Arizona’s audit of fall presidential election could drag into summer. Will taxpayers get stuck with the bill?”<https://electionlawblog.org/?p=121969>
Posted on May 5, 2021 9:33 am<https://electionlawblog.org/?p=121969> by Rick Hasen<https://electionlawblog.org/?author=3>

12News:<https://www.12news.com/article/news/politics/arizonas-audit-of-fall-presidential-election-could-drag-into-summer-will-taxpayers-get-stuck-with-the-bill/75-d7bd64c7-2f5b-4675-a228-29c6526ede6b>

Senate President Karen Fann rented the coliseum through May 14 for a recount and examination of 2.1 million Maricopa County ballots.

Fann, a Prescott Republican, also signed an agreement allowing the county to retrieve its subpoenaed ballots and ballot-tabulating machines by May 14.

Ken Bennett – the Senate audit liaison, a former secretary of state, and a longtime Prescott friend of Fann’s – said an estimated 175,000 ballots, perhaps 200,000, ballots had been counted.

At a best-case rate of 20,000 ballots counted per day, given current resources, the count would take about 100 more days.

Last week, Bennett had told reporters the hand count would be done by May 14.

Now, he has a different outlook.

“Accuracy is much more important than speed,” he told 12 News.

Bennett said the temp workforce of about 60 people would allow the audit team to add a third shift.

“They’ve got 46 stations ready instead of the 20,” he said. “As soon as the personnel can fill them we will.”

The May 14 deadline was significant because two-dozen Phoenix high schools will hold their graduations at the coliseum the following week.

“The facility has told us that if we had to stand aside for five days for the graduation, we could come right back in and have as much time as we need,” Bennett said.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Constitutional Challenges Loom Over Proposed Voting Bill”<https://electionlawblog.org/?p=121967>
Posted on May 5, 2021 8:39 am<https://electionlawblog.org/?p=121967> by Rick Hasen<https://electionlawblog.org/?author=3>

Adam Liptak deep dive:<https://www.nytimes.com/2021/05/05/us/voting-rights-bill-legal.html>

 If the sweeping voting rights bill<https://www.nytimes.com/2021/03/03/us/politics/house-voting-rights-bill.html> that the House passed in March overcomes substantial hurdles in the Senate to become law, it would reshape American elections and represent a triumph for Democrats eager to combat the wave of election restrictions<https://www.nytimes.com/2021/04/29/us/politics/florida-voting-rights-bill.html> moving through Republican-controlled state legislatures.

But passage of the bill, known as H.R. 1, would end a legislative fight and start a legal war that could dwarf the court challenges aimed at the Affordable Care Act over the past decade.

“I have no doubt that if H.R. 1 passes, we’re going to have a dozen major Supreme Court cases on different pieces of it,” said Nicholas Stephanopoulos<https://hls.harvard.edu/faculty/directory/11787/Stephanopoulos>, a law professor at Harvard.

The potential for the bill to set off a sprawling constitutional battle is largely a function of its ambitions. It would end felon disenfranchisement, require independent commissions to draw congressional districts, establish public financing for congressional candidates, order presidential candidates to disclose their tax returns, address dark money in political advertising and restructure the Federal Election Commission.

The bill’s opponents say that it is, in the words of an editorial in The National Review<https://www.nationalreview.com/2019/03/democrats-for-the-people-act-election-reform-bill-unconstitutional/>, “a frontal assault on the Constitution” and “the most comprehensively unconstitutional bill in modern American history.”

More measured critics take issue with specific provisions even as they acknowledge that the very nature of the bill — a grab bag of largely unrelated measures — would make it difficult to attack in a systematic way. In that respect, the anticipated challenges differ from those aimed at the Affordable Care Act, some of which sought to destroy the entire law.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Opinion: How GOP rage at Liz Cheney makes a future stolen election more likely”<https://electionlawblog.org/?p=121965>
Posted on May 5, 2021 8:36 am<https://electionlawblog.org/?p=121965> by Rick Hasen<https://electionlawblog.org/?author=3>

Important Greg Sargent in WaPo<https://www.washingtonpost.com/opinions/2021/05/05/liz-cheney-ouster-gop-leadership-future-stolen-election/>:

Rep. Liz Cheney’s fate appears sealed: Republicans are set to oust the Wyoming Republican as the No. 3 in the House GOP leadership, and will most likely replace her<https://www.cnn.com/2021/05/04/politics/elise-stefanik-running-republican-conference-chair/index.html> with Rep. Elise Stefanik of New York, whose loyalty to Donald Trump remains unquestioned.

This is being widely depicted as a battle over the past, and over Trump. Most accounts portray it as a sign that in today’s GOP, fealty to the former president is a bedrock requirement, denouncing his lies about 2020 has become unacceptable, and telling the truth about the Jan. 6 insurrection is disqualifying.

All that is true, but the forward-looking dimension to this story is getting lost. What also seems unavoidably at stake is that the GOP appears to be plunging headlong into a level of full-blown hostility to democracy that has deeply unsettling future ramifications….

This combination is toxic: Republicans are untethering themselves from any obligation to recognize future legitimate election outcomes, which will provide the rationale to overturn them, a freedom they are also effectively in process of appropriating. Cheney is insisting on a GOP future premised on a full repudiation of these tendencies, and getting punished for it.

Guess what: These same House Republicans might control the lower chamber when Congress is counting electors after the 2024 presidential election.

“We should start to very much worry about what Jan. 6, 2025, looks like,” Edward Foley, a renowned election law scholar and a Post contributing columnist, told me.

Imagine a 2024 election decided in one state, where a GOP-controlled legislature sends electors for the GOP candidate in defiance of a close popular vote. The same House Republicans who punished Cheney — many of whom already voted<https://www.nytimes.com/interactive/2021/01/07/us/elections/electoral-college-biden-objectors.html> against President Biden’s electors, but now control the House and have continued radicalizing — could vote to certify that slate.

There are many possible scenarios here — a lot would turn on whether the governor in that state was a Democrat, on what the Senate did, and on how the Supreme Court sorted out the mess.

But as Foley told me, it’s plausible that “you could have an outcome that is inconsistent with what the voters themselves wanted.” However it turned out, Foley added, the dispute itself “would be a major crisis.”

This places burdens on Democrats. Democratic strategist Simon Rosenberg told me that this obliges Democrats to level with voters about the threat Republicans pose to democratic stability.

“If Cheney is ousted, Democrats will have to make the radicalization of the GOP a major part of the 2022 conversation,” Rosenberg said.

And as elections scholar Rick Hasen told me, Democrats should try to get patriotic Republicans to support revisions to the Electoral Count Act, to make it “harder for a legislature to send a separate slate when there was no problem with how the election was run.”

Cheney’s ouster should prompt this, along with a much greater public and media focus on the brute reality of the GOP’s fundamental turn away from democracy.

“The core component of the democratic process is that we count the votes as cast,” Foley told me. The punishing of Cheney, Foley concluded, suggests that the Republican Party might be institutionally “abandoning the very essence of democracy.”
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Posted in chicanery<https://electionlawblog.org/?cat=12>, electoral college<https://electionlawblog.org/?cat=44>


“Trump attorney, other allies launch voter fraud organization”<https://electionlawblog.org/?p=121962>
Posted on May 5, 2021 7:31 am<https://electionlawblog.org/?p=121962> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/news/2021/05/05/trump-election-integrity-organization-485399?nname=playbook&nid=0000014f-1646-d88f-a1cf-5f46b7bd0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=630318> reports.

John Kruzel:<https://twitter.com/johnkruzel/status/1389915676299694083?s=20>
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


Analysis: Facebook Oversight Board’s Decision Upholding Trump Suspension But Requiring Facebook to Reconsider “Indefinite” Suspension Is Good, But Doesn’t Go Far Enough in Requiring Trump to Abandon Claims of Stolen Election for Platform Restoration<https://electionlawblog.org/?p=121956>
Posted on May 5, 2021 6:53 am<https://electionlawblog.org/?p=121956> by Rick Hasen<https://electionlawblog.org/?author=3>

Facebook’s Oversight Board has issued<https://www.oversightboard.com/decision/FB-691QAMHJ> its long-anticipated decision on whether Facebook was correct in removing Trump from the platform given his statements supporting the Capitol insurrection on January 6, 2021. The Board determined that Facebook was correct: “In maintaining an unfounded narrative of electoral fraud and persistent calls to action, Mr. Trump created an environment where a serious risk of violence was possible.” But the Board also found that Facebook’s “indefinite” suspension of Trump was not supported by Facebook’s own rules. It requires Facebook within 6 months to explain what it rules are for indefinite suspension and apply them to Trump. It also suggests more broadly a set of criteria that will protect both freedom of expression and require the platform to take action against threats of political violence by political leaders.

The approach that the Oversight Board took is broadly consistent with the approach I and a group of scholars advocated in this letter<https://www.politico.com/f/?id=00000177-8e40-df6c-abf7-ae726a9b0000> we submitted to the Board in the case. The Board properly recognizes that Trump’s statements increased the danger of violence and democratic instability which overcomes the usual heavy thumb on the scale in favor of the rights of free expression on political issues. And, although not addressed in the letter, the Board is surely right that Facebook needs to have transparent and consistently applied standards for when content from influential leaders is to be removed. And it should apply that standard to Trump.

Where the Board fell short is in opining on what those standards should be and when someone suspended from the platform for “creating an environment where a serious risk of violence was possible” should be reinstated. The majority refused to opine on such a standard, but a minority of the Board did. “Facebook should, for example, be satisfied that Mr. Trump has ceased making unfounded claims about election fraud in the manner that justified suspension on January 6.” From the summary of the decision: “A minority of the Board emphasized that Facebook should take steps to prevent the repetition of adverse human rights impacts and ensure that users who seek reinstatement after suspension recognize their wrongdoing and commit to observing the rules in the future.”

This, at a minimum, should be the standard that Facebook applies in the future. Facebook is a private company that can include or exclude content as it sees fit. As a responsible corporate citizen, Facebook, like Twitter, can decide it does not need to give a platform to someone who encouraged violence and who continues to insist, against all reliable evidence, that the election was stolen. Until Trump backs off such claims (and he never will), he should not be reinstated. As we explained in the letter to the Oversight Board:

Under these standards, President Trump’s statements and course of conduct culminating on January 6, 2021 justified his deplatforming from social media. Before January 6 the President had made over 400 comments falsely calling the election into question. He encouraged his supporters to come to the Capitol on January 6 for “wild” protests. He gave a speech shared on social media that encouraged his supporters to march to the Capitol and interfere with the vote counting, and in the post that led to his deplatforming, he praised those engaged in insurrection with “love” and repeated false claims of a “fraudulent” and “stolen” election as the violence in the Capitol was ongoing.

Anyone who doubts the risks of such speech need only look at the events of January 6, 2021 in the U.S. Capitol. Not only did such speech lead to the deaths of five people and injuries to countless others, including police officers guarding the Vice President of the United States and Members of Congress; those political leaders came within moments of being kidnapped or killed but for the bravery of law enforcement. Without social media spreading Trump’s statements, it seems extremely unlikely these events would have occurred. The eventual deplatforming of Trump’s accounts helped defuse a dangerous and antidemocratic situation.

There no doubt will be close calls under a policy that allows the deplatforming of political leaders in extreme circumstances. This was not one of them.

Let’s be perfectly clear about this: if the Board required Trump’s reinstatement, he’d be writing TODAY about how the fake Arizona “audit” will prove the election was stolen, further undermining confidence in the American electoral process. (Indeed, here’s what Trump just released<https://twitter.com/meridithmcgraw/status/1389940678101176322?s=20>; it would be on Facebook if allowed.)
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Posted in cheap speech<https://electionlawblog.org/?cat=130>, chicanery<https://electionlawblog.org/?cat=12>


“Does Public Campaign Funding Crowd Out Private Donation Activity? Evidence from Seattle’s Democracy Voucher Program”<https://electionlawblog.org/?p=121953>
Posted on May 4, 2021 1:52 pm<https://electionlawblog.org/?p=121953> by Rick Hasen<https://electionlawblog.org/?author=3>

New analysis<https://osf.io/preprints/socarxiv/9wtzs/> from Alan Griffith and Thomas Noonen. Abstract:

During each election cycle, the city of Seattle distributes four $25 vouchers to every registered voter, which may be donated to and redeemed by campaigns for city office. Through a difference-in-differences research design, we study the causal effect of Seattle’s program on various outcomes in city council elections in the first two cycles after implementation, with two comparison groups drawn from other cities in Washington and California. We find that the program led to an approximately 62-100% increase in total contributions and a 400% increase in number of unique donors. The effects on dollars and donors are entirely driven by small donors, defined as those who contribute less than $200 to a campaign. We find statistically insignificant evidence of decreases in private donations, although our point estimates suggest moderate-to-substantial crowd-out ratios. We further show that the program led to a 76-86% increase in candidates for city council. These results provide some of the first causal evidence on the effect of decentralized public campaign finance schemes, while also speaking to broader questions measuring the effects of money in politics, campaign regulation, and the effects of public funds on private giving.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“The Redistricting Landscape After the Apportionment Numbers”<https://electionlawblog.org/?p=121951>
Posted on May 4, 2021 1:49 pm<https://electionlawblog.org/?p=121951> by Rick Hasen<https://electionlawblog.org/?author=3>

New Brennan Center report<https://www.brennancenter.org/our-work/research-reports/redistricting-landscape-after-apportionment-numbers>.
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Posted in redistricting<https://electionlawblog.org/?cat=6>




--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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http://electionlawblog.org<http://electionlawblog.org/>



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