[EL] ELB News and Commentary 5/7/21

Fri May 7 07:29:54 PDT 2021

“Florida and Texas Join the March as Republicans Press Voting Limits”<https://electionlawblog.org/?p=122028>
Posted on May 7, 2021 7:28 am<https://electionlawblog.org/?p=122028> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/05/06/us/politics/florida-texas-voting-rights-bills.html>

Hours after Florida installed a rash of new voting restrictions, the Republican-led Legislature in Texas pressed ahead on Thursday with its own far-reaching bill that would make it one of the most difficult states in the nation in which to cast a ballot.

The Texas bill would, among other restrictions, greatly empower partisan poll watchers, prohibit election officials from mailing out absentee ballot applications and impose strict punishments for those who provide assistance outside the lines of what is permissible.

After a lengthy debate that lasted into the early morning hours on Friday, the State House of Representatives passed the measure in a 81-64 vote, largely along party lines, at about 3 a.m., following a flurry of amendments that had been spurred by Democratic protests and a Democratic procedural move known as a point of order.

The new amendments softened some of the initial new penalties proposed for those who run afoul of the rules and added that the police could be called to remove unruly partisan poll watchers. Other amendments added by Democrats sought to expand ballot access, including with changes to ballot layout and with voter registration at high schools. But those amendments could be knocked off by a potential conference committee.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“GOP eyes voter fraud conspiracy theorist to replace Liz Cheney”<https://electionlawblog.org/?p=122026>
Posted on May 7, 2021 7:26 am<https://electionlawblog.org/?p=122026> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/2021/05/06/gop-eyes-voter-fraud-conspiracy-theorist-replace-liz-cheney/>

Republicans have offered a pretty curious rationale for excommunicating Rep. Liz Cheney (R-Wyo.)<https://www.washingtonpost.com/politics/2021/05/05/what-is-liz-cheney-thinking/?itid=lk_inline_manual_2> from her No. 3 leadership role. Amid her continued criticisms of former president Donald Trump, they’ve argued not that her claims are wrong<https://www.washingtonpost.com/politics/2021/05/04/crucial-thing-liz-cheneys-gop-critics-dont-say-shes-wrong-about-trump/?itid=lk_inline_manual_2> (because they aren’t), but rather that her commentary is unhelpful to the party’s efforts to win back the majority and that they’d rather focus on the future. To perhaps oversimplify things a bit: They’d just rather not talk about it.

The argument is particularly strange given how much the man they assure remains their party’s leader — Trump — is very much fixated on the past, still spouting election conspiracy theories six months after he lost.

But it’s also strange given that the emerging choice to replace Cheney offered some of the same conspiratorial claims. That will only reinforce how much Trump’s “big lie” has infected his party.

The Washington Post’s Paul Kane on Wednesday profiled Rep. Elise Stefanik (R-N.Y.)<https://www.washingtonpost.com/powerpost/stefanik-cheney-trump/2021/05/05/3a20c2a4-adbc-11eb-b476-c3b287e52a01_story.html?itid=lk_inline_manual_8>, who appears to be the prohibitive favorite to succeed Cheney. Stefanik’s story is one of the most significant metamorphoses of the Trump era. At just 36, she was a former GOP aide and entered Congress as an acolyte of former House speaker Paul Ryan (R-Wis.), but has since become a Trumpian firebrand.

That includes spouting his baseless and false fraud claims in the lead-up to the Jan. 6 Capitol riot. She did so significantly more than many in her party and certainly more than the leaders whose ranks she could soon join. (They would often merely cite states allegedly not following their election laws, rather than massive fraud.)

Stefanik’s most extreme claim came in a statement published shortly before the Capitol riot, in which she explained why she would object to counting certain state’s electors.

She cited the same things as other prominent Republicans about state election laws supposedly not being followed. But she also made a particularly remarkable claim about Georgia<https://www.timesunion.com/news/article/Stefanik-explains-why-she-will-object-to-15850046.php>: that “more than 140,000 votes came from underage, deceased, and otherwise unauthorized voters — in Fulton County alone.”

There is zero evidence for this. As CNN’s Daniel Dale notes, similar claims were fact-checked and debunked<https://www.cnn.com/2021/05/06/politics/fact-check-stefanik-big-lie-election-trump/index.html> in the previous weeks. What’s more, there were only about 524,000 total voters in Atlanta-based Fulton County in the 2020 election. Stefanik was therefore claiming more than 1 in 4 votes in a single county were fraudulent — a ridiculous number given that Fulton County’s relative turnout was in line with history. It’s even more ridiculous given that all the court cases and months of review have produced no evidence of anything like it.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“Arizona Review of 2020 Vote Is Riddled With Flaws, Says Secretary of State”<https://electionlawblog.org/?p=122024>
Posted on May 7, 2021 7:21 am<https://electionlawblog.org/?p=122024> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2021/05/06/us/arizona-vote-count-republicans.html>
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Posted in chicanery<https://electionlawblog.org/?cat=12>

“Inside Mitch McConnell’s personal push to defeat Democrats’ voting reforms”<https://electionlawblog.org/?p=122022>
Posted on May 7, 2021 7:20 am<https://electionlawblog.org/?p=122022> by Rick Hasen<https://electionlawblog.org/?author=3>

McClatchy:<https://www.mcclatchydc.com/news/politics-government/article251179289.html>

Every week, a group of nearly 100 conservative leaders convene for a 30-minute strategy call on a single issue: How to combat Democrats’ sweeping legislation to change the way federal elections are conducted.

Two weeks ago, the keynote briefer was Sen. Mitch McConnell, who made it crystal clear that defeating the “For the People Act” is his top priority of this two-year legislative session.

McConnell has conveyed his vehement opposition to the bill repeatedly in public. What’s different, conservatives say, is his personal level of commitment behind-the-scenes to educate activists on just how damaging the legislation would be to the future electoral prospects of Republicans. To those involved, they’ve noticed a level of engagement from the GOP leader they haven’t seen before.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>

Must-Read: “Arizona audit ignores federal law on election records”<https://electionlawblog.org/?p=122020>
Posted on May 7, 2021 7:17 am<https://electionlawblog.org/?p=122020> by Rick Hasen<https://electionlawblog.org/?author=3>

Veteran election hand Christopher Thomas oped<https://www.azmirror.com/2021/05/06/arizona-audit-ignores-federal-law-on-election-records/> in the Arizona Mirror:

Arizona’s faux audit of 2020 ballots fails to comply with the federal election records retention law, further undermining the integrity of the exercise with the possibility of illegality.

This law, which has been on the books since May 4, 1960, requires election officials to “retain and preserve for a period of 22 months” all election records, including ballots in any election for federal office, including the offices of president and vice president, presidential electors, and member of the U.S. Senate. (52 USC 20701, formerly 42 USC 1974). It seems no election official or counsel informed the Maricopa County Superior Court of the strict federal ballot retention requirements, and the judge’s opinion that the county had to turn over its ballots to the Senate offers no analysis of the federal law.

Retaining and preserving documents, described as maintaining the chain of custody of critical records, including ballots, is a required legal precursor to any federal or state law enforcement investigation. These include allegations about the conduct of an election, violations of federal election laws such as the Voting Rights Act, or voters’ constitutional rights. If documents are not securely maintained by election officials within a valid chain of custody, there is no basis to establish the genuineness of the records in question necessary for prosecution.

The U.S. Department of Justice details this requirement over seven pages in its Federal Prosecution of Election Offenses<https://www.justice.gov/criminal/file/1029066/download>, noting that the “requirements of this federal law place the retention and safekeeping duties squarely on the shoulders of election officers.”

This chain of custody has now been broken in Maricopa County. The state Senate and its consultants have physical possession of nearly 2.1 million November election ballots, meaning that Arizona election officials are no longer “retaining and preserving” election ballots. After the Senate completes its work and the ballots have been handled by an untold number of individuals employed by the state Senate or its consultant, it will be impossible for anyone to confirm or refute the results.

Once the chain of custody is broken, the ballots are no longer genuine according to federal election law. Would it have been possible to conduct an audit as envisioned by the Arizona Senate and at the same time comply with federal records retention law? Yes, it is possible. Rather than breaking the official chain of custody, the Arizona election officials should have either made paper copies of the ballots or scanned the ballots for viewing electronically. …
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Watch Archived Video: The Internet, Elections and the First Amendment (With evelyn douek, Noah Feldman, and Me, Moderated by Floyd Abrams)<https://electionlawblog.org/?p=122018>
Posted on May 7, 2021 7:14 am<https://electionlawblog.org/?p=122018> by Rick Hasen<https://electionlawblog.org/?author=3>

Watch here<https://www.youtube.com/watch?v=kylspvFU998>, via Yale’s Abrams Institute.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>

Election Law Journal Special Issue on Foreign Election Interference: A Global Response (Edited by Lori Ringhand and Yasmin Dawood)<https://electionlawblog.org/?p=122015>
Posted on May 7, 2021 7:11 am<https://electionlawblog.org/?p=122015> by Rick Hasen<https://electionlawblog.org/?author=3>

Looks like a great issue<https://www.liebertpub.com/toc/elj/20/1> to dive into with some free access:

Foreign Election Interference: Comparative Approaches to a Global Challenge<https://www.liebertpub.com/doi/10.1089/elj.2020.0683>
·         Lori A. Ringhand<https://www.liebertpub.com/author/Ringhand%2C+Lori+A>
Combatting Foreign Election Interference: Canada’s Electoral Ecosystem Approach to Disinformation and Cyber Threats<https://www.liebertpub.com/doi/10.1089/elj.2020.0652>
·         Yasmin Dawood<https://www.liebertpub.com/author/Dawood%2C+Yasmin>
Constitutional Formalities, Power Realities, and Comparative Anglophone Responses to Foreign Campaign Meddling<https://www.liebertpub.com/doi/10.1089/elj.2020.0653>
·         Jacob Eisler<https://www.liebertpub.com/author/Eisler%2C+Jacob>

Keeping Our Feet Dry: Impediments to Foreign Interference in Elections in the Netherlands<https://www.liebertpub.com/doi/10.1089/elj.2020.0654>
·         Galen A. Irwin<https://www.liebertpub.com/author/Irwin%2C+Galen+A> and
·         Joop J.M. van Holsteyn<https://www.liebertpub.com/author/van+Holsteyn%2C+Joop+JM>

The Brexit Referendum in Northern Ireland: Political Duplicity and Legal Loopholes<https://www.liebertpub.com/doi/10.1089/elj.2020.0655>
·         Mary C. Murphy<https://www.liebertpub.com/author/Murphy%2C+Mary+C>

Islands in the Storm? Responses to Foreign Electoral Interference in Australia and New Zealand<https://www.liebertpub.com/doi/10.1089/elj.2020.0656>
·         Graeme Orr<https://www.liebertpub.com/author/Orr%2C+Graeme> and
·         Andrew Geddis<https://www.liebertpub.com/author/Geddis%2C+Andrew>

The French Legislation Against Digital Information Manipulation in Electoral Campaigns: A Scope Limited by Freedom of Expression<https://www.liebertpub.com/doi/10.1089/elj.2021.0001>
·         Irène Couzigou<https://www.liebertpub.com/author/Couzigou%2C+Ir%C3%A8ne>
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Posted in comparative election law<https://electionlawblog.org/?cat=107>

“Republicans want to expand the Arizona audit — but DOJ may shut it down”<https://electionlawblog.org/?p=122013>
Posted on May 7, 2021 6:53 am<https://electionlawblog.org/?p=122013> by Rick Hasen<https://electionlawblog.org/?author=3>

Steven Rosenfeld<https://www.alternet.org/2021/05/arizona-audit-update/>:

On Wednesday, May 5, the Senate’s liaison to the audit, former Arizona Secretary of State Ken Bennett, a Republican, confirmed that the GOP-led Senate is negotiating with a California nonprofit to conduct a new and separate audit of Maricopa County’s 2020 fall election votes.

The nonprofit, Citizens Oversight<https://citizensoversight.org/>, would conduct an audit based on analyzing the digital images of every paper ballot that is created at the start of the vote-counting process, when election system software reads hand- or machine-marked paper ballots and tallies the vote counts. The nonprofit has been developing its Audit Engine tool<https://copswiki.org/Common/AuditEngine> for several years and has tested it in a handful of counties in California and Florida and is now using it in Georgia

“I know our election procedures and overall processes are good enough to prove to somebody if they really lost an election by more than one percent or more, but not by one-third of one percent,” Bennett said. “But that’s not good enough because that’s not precise enough.”
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“After All-Night Session, Texas House Approves GOP-Backed Voting Restrictions Bill”<https://electionlawblog.org/?p=122011>
Posted on May 7, 2021 6:52 am<https://electionlawblog.org/?p=122011> by Rick Hasen<https://electionlawblog.org/?author=3>

NPR<https://www.npr.org/2021/05/07/994542161/after-all-night-session-texas-house-approves-new-gop-backed-election-law>:

Texas legislators approved new, more restrictive state election rules aftera session that lasted from Thursday night into the early morning hours of Friday. The GOP-backed state Senate bill<https://legiscan.com/TX/bill/SB7/2021> passed the House at 3 a.m. (4 a.m. ET) after hours of debate over Democratic-proposed amendments.

The House version of the bill, which differs significantly from what passed the state Senate, will now go to a conference committee to resolve the differences.

The bill would make it a felony to provide a voter with an application to vote by mail if they hadn’t requested one, or to use any public funds to facilitate the third-party distribution of mail-in voting applications.

The ability for polling place “watchers” to be present throughout the election day is also expanded under the bill. It sets a high bar for when such observers can be taken out of the polling place. The bill states they can be removed “only if the watcher engages in activity that would constitute an offense related to the conduct of the election.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“F.E.C. Drops Case Reviewing Trump Hush-Money Payments to Women”<https://electionlawblog.org/?p=122009>
Posted on May 7, 2021 6:43 am<https://electionlawblog.org/?p=122009> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/05/06/us/politics/trump-michael-cohen-fec.html>

The Federal Election Commission said on Thursday that it had formally dropped a case looking into whether former President Donald J. Trump violated election law with a payment of $130,000 shortly before the 2016 election to a pornographic-film actress by his personal lawyer at the time, Michael D. Cohen.

The payment was never reported on Mr. Trump’s campaign filings. Mr. Cohen would go on to say that Mr. Trump had directed him<https://www.nytimes.com/2018/08/21/nyregion/michael-cohen-plea-deal-trump.html> to arrange payments to two women during the 2016 race, and would apologize for his involvement<https://www.nytimes.com/2018/12/12/nyregion/michael-cohen-sentence-trump.html> in a hush-money scandal. Mr. Cohen was sentenced to prison<https://www.nytimes.com/2018/12/12/nyregion/michael-cohen-sentence-trump.html> for breaking campaign finance laws, tax evasion and lying to Congress.

“It was my own weakness and a blind loyalty to this man that led me to choose a path of darkness over light,” Mr. Cohen said of Mr. Trump in court in 2018.

While Mr. Cohen has served time in prison, Mr. Trump has not faced legal consequences for the payment….

In December 2020, the F.E.C. issued an internal report<https://www.fec.gov/files/legal/murs/7313/7313_19.pdf> from its Office of General Counsel on how to proceed in its review. The office said it had found “reason to believe” violations of campaign finance law were made “knowingly and willfully” by the Trump campaign.

But the election commission — split evenly between three Republicans and three Democratic-aligned commissioners — declined to proceed in a closed-door meeting in February. Two Republican commissioners voted <https://www.fec.gov/files/legal/murs/7313/7313_27.pdf> to dismiss the case while two Democratic commissioners voted<https://www.fec.gov/files/legal/murs/7313/7313_28.pdf> to move forward. There was one absence and one Republican recusal.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, federal election commission<https://electionlawblog.org/?cat=24>

New Nate Persily: “Yes, Facebook’s Oversight Board upheld Trump’s suspension. But here’s the bigger issue.”<https://electionlawblog.org/?p=122007>
Posted on May 7, 2021 6:40 am<https://electionlawblog.org/?p=122007> by Rick Hasen<https://electionlawblog.org/?author=3>

Nate Persily<https://www.washingtonpost.com/politics/2021/05/06/yes-facebooks-oversight-board-upheld-trumps-suspension-heres-bigger-issue/> at The Monkey Cage:

The most important aspect of the board’s adjudication of the Trump takedown was its reliance on international human rights law to guide its decision. The board’s earlier decisions also referred to applicable United Nations Conventions and treaties,as does the charter that established the board in the first place. In many respects, the Oversight Board is a first step toward realizing human rights’ defenders long-standing dream of a world court with transnational jurisdiction.

However, it’s hard for Facebook to implement human rights principles that were designed to bind governments, rather than to guide a private company trying to moderate content. Facebook is not a government; its news feed, which uses algorithms to deliver personalized content to billions of people, is not the public square. Facebook is in the business of what constitutional lawyers call “prior restraints” — that is, filtering speech before it reaches its audience. Its rules on hate speech, obscenity, self-harm and disinformation, to name a few, would all be unconstitutional under the First Amendment if passed by the U.S. government.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>

“The modern primary system makes a loser of reason”<https://electionlawblog.org/?p=122004>
Posted on May 6, 2021 12:29 pm<https://electionlawblog.org/?p=122004> by Richard Pildes<https://electionlawblog.org/?author=7>

That’s an arresting line from this<https://www.washingtonpost.com/opinions/2021/05/06/liz-cheney-mitt-romney-last-stand-republican-royalty/> Matt Bai piece on the Republican Party. I consider<https://www.nytimes.com/2021/02/25/opinion/elections-politics-extremists.html> changing the structure of primaries one of the more important political reform agenda items. See this good report<https://www.google.com/search?client=firefox-b-1-d&q=unite+america+primary+problem> from Unite America on the topic also.

From the Bai piece:

When you hear a Romney or a Cheney calling out Trump’s lies and condemning his anti-American rhetoric, it’s like you’re seeing the collapse of a star in the night sky — an event that seems to be happening in the here and now, but that’s actually just an afterimage of something dying long ago.

I will admit: I didn’t think that’s how it would turn out after Trump left the scene. I still believe that most Americans live in a center-right space on the political spectrum, and I expected that Republican Washington, having writhed its way through the Trumpian plague, would set about reclaiming them.

But the modern primary system makes a loser of reason, and I’ve come to the conclusion that it would take a new movement, most likely independent, to revive anything like traditional conservatism in the years ahead.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

The 2022 Liz Cheney Primary And National Small Donors<https://electionlawblog.org/?p=122001>
Posted on May 6, 2021 12:05 pm<https://electionlawblog.org/?p=122001> by Richard Pildes<https://electionlawblog.org/?author=7>

From the Washington Post:<https://www.washingtonpost.com/opinions/2021/05/05/trump-vs-cheney-fight-here-wyoming-is-battle-soul-republican-party/>

The contest is quickly becoming a free-for-all. Following Cheney’s impeachment vote, the state party censured her<https://www.washingtonpost.com/politics/2021/02/06/wyoming-gop-censures-rep-liz-cheney-voting-impeach-trump/?itid=lk_inline_manual_16>, and several Wyoming politicians filed paperwork with the Federal Election Commission to challenge her. The most credible among them so far appears to be Anthony Bouchard, a state senator and gun-rights activist with an abrasive style that proved highly successful in his most recent campaign. Bouchard’s national social media campaign generated $400,000 in small donations<https://tennesseestar.com/2021/05/03/gop-challenger-bouchard-raises-more-than-400k-to-fund-his-cheney-takedown/> from all 50 states in its first 10 weeks.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Participation” in the Disinformation Age<https://electionlawblog.org/?p=121995>
Posted on May 6, 2021 10:47 am<https://electionlawblog.org/?p=121995> by Richard Pildes<https://electionlawblog.org/?author=7>

This story <https://www.protocol.com/fcc-net-neutrality-fake-comments> caught my eye: “NY AG finds nearly 82% of net neutrality comments to the FCC were fake”:

“The OAG found that millions of fake comments were submitted through a secret campaign, funded by the country’s largest broadband companies, to manufacture support for the repeal of existing net neutrality rules using lead generators,” the report says. “And millions more were submitted by a 19- year old college student using made-up identities.”

On the one hand, an organized effort from the biggest players in the industry. At the same time, millions (7.7 million, to be exact) from one student. Welcome to the wonders of modern technology.

The story does not say whether the FCC had any idea these were manipulated comments.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“‘You can’t make a change … by sitting on the sidelines’: Recruitment of ballot counters raises concerns”<https://electionlawblog.org/?p=121992>
Posted on May 6, 2021 10:31 am<https://electionlawblog.org/?p=121992> by Rick Hasen<https://electionlawblog.org/?author=3>

Arizona Republic:<https://www.azcentral.com/story/news/politics/elections/2021/05/06/maricopa-county-audit-recruitment-ballot-counters-raises-partisan-concerns/4951442001/?gnt-cfr=1>

The effort to recruit people to count ballots for the ongoing audit of Maricopa County’s presidential election results appears targeted in part at traditionally conservative groups — and some of the recruiters themselves appear to have far-right political leanings.

One recruiter is a retired police officer who works as an investigator for an extremist right-wing group that warns of “the growing threat of the Marxist and the Islamic movement in America.”

Another person involved in recruitment used her brief stint as the county Republican Party chairwoman to try to “get Trump back in office” by protesting the results of one of the county’s prior audits.

Their efforts targetretired police officers, veterans and Republican groups, according to three recruiting pitches obtained by The Arizona Republic.

The politically charged messaging of one recruiting email left a group of retired law enforcement officers defending itself against claims of partisanship after some members complained.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D121992&title=%E2%80%9C%E2%80%98You%20can%E2%80%99t%20make%20a%20change%20%E2%80%A6%20by%20sitting%20on%20the%20sidelines%E2%80%99%3A%20Recruitment%20of%20ballot%20counters%20raises%20concerns%E2%80%9D>
Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“F.E.C. Asks Congress to Ban Prechecked Recurring Donation Boxes”<https://electionlawblog.org/?p=121990>
Posted on May 6, 2021 10:29 am<https://electionlawblog.org/?p=121990> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/05/06/us/politics/fec-trump-donations.html>

The Federal Election Commission voted unanimously on Thursday to recommend that Congress ban political campaigns from guiding donors by default into recurring contributions through prechecked boxes, a month after a New York Times investigation<https://www.nytimes.com/2021/04/03/us/politics/trump-donations.html> showed that former President Donald J. Trump’s political operation had steered huge numbers of unwitting supporters into repeated donations through that tactic.

The bipartisan commission, which serves as the nation’s top election watchdog agency, is divided evenly between three Democratic-aligned commissioners and three Republicans, a composition that often leads to stalemate. But commissioners of both parties, including three Republicans appointed by Mr. Trump, came together on Thursday to ask Congress to strengthen campaign finance law to protect online donors.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, federal election commission<https://electionlawblog.org/?cat=24>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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http://electionlawblog.org<http://electionlawblog.org/>

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