[EL] ELB News and Commentary 5/13/21

Thu May 13 07:23:48 PDT 2021

“‘A Perpetual Motion Machine’: How Disinformation Drives Voting Laws”<https://electionlawblog.org/?p=122119>
Posted on May 13, 2021 7:21 am<https://electionlawblog.org/?p=122119> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/05/13/us/politics/disinformation-voting-laws.html>

The bills demonstrate how disinformation can take on a life of its own, forming a feedback loop that shapes policy for years to come. When promoted with sufficient intensity, falsehoods — whether about election security or the coronavirus or other topics — can shape voters’ attitudes toward policies, and lawmakers can cite those attitudes as the basis for major changes.

The embrace of the falsehoods also showcases the continuing power of Mr. Trump inside the Republican Party, which has widely adopted and weaponized his election claims. Many Republicans, eager to gain his support, have raced to champion the new voting laws. Those who have stood up to his falsehoods have paid the price. Representative Liz Cheney was ousted from her House leadership post on Wednesday after repudiating what she called the “big lie.”

Lawmakers in at least 33 states have cited low public confidence in election integrity in their public comments as a justification for bills to restrict voting, according to a tally by The New York Times. In several states — including Arizona, Florida, Georgia and Iowa — the bills have already been signed into law, and legislation in Texas is very close to passage.

Voter fraud is extremely rare<https://www.nytimes.com/2020/11/16/us/politics/voter-fraud-claims.html> in the United States, and officials in every state<https://www.nytimes.com/2020/11/10/us/politics/voting-fraud.html> and at the federal level<https://www.nytimes.com/2020/11/12/us/politics/election-officials-contradict-trump.html> affirmed that the 2020 election was secure.

“It’s like a perpetual motion machine — you create the fear of fraud out of vapors and then cut down on people’s votes because of the fog you’ve created,” said Michael Waldman, the president of the Brennan Center for Justice at New York University. “Politicians, for partisan purposes, lied to supporters about widespread fraud. The supporters believe the lies, and then that belief creates this rationale for the politicians to say, ‘Well, I know it’s not really true, but look how worried everybody is.’”

Calls to change election laws because of public perceptions are not new: Reports in 2001<http://web1.millercenter.org/commissions/comm_2001.pdf>, 2005<https://www.legislationline.org/download/id/1472/file/3b50795b2d0374cbef5c29766256.pdf> and 2008<https://authors.library.caltech.edu/13160/1/ALVjp08.pdf>, for example, warned of the potential repercussions of voter distrust. In 2008, the Supreme Court upheld Indiana’s voter ID law<https://www.nytimes.com/2008/04/29/washington/29scotus.html> based partly on the argument that it would increase confidence in the state’s elections. And confidence tends to fall at least somewhat after every election among voters in the losing party, according to Charles Stewart III, a director of the Election Data and Science Lab at M.I.T.

But there are some key differences this year, voting rights and disinformation experts say. First, the scale of the legislative efforts — as measured both by the number of bills introduced and the extent of the restrictions they propose — is greater than in past election cycles. Second, the falling confidence in the electoral system is directly traceable to a disinformation campaign. And the drop in confidence among Republicans is far steeper<https://www.voterstudygroup.org/publication/voices-on-the-vote> than anything seen in past cycles.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“Manchin to support measured voting reform in lieu of sweeping Democratic proposal”<https://electionlawblog.org/?p=122117>
Posted on May 13, 2021 7:11 am<https://electionlawblog.org/?p=122117> by Rick Hasen<https://electionlawblog.org/?author=3>

ABC<https://abcnews.go.com/Politics/manchin-support-measured-voting-reform-lieu-sweeping-democratic/story?id=77646348>:

Sen. Joe Manchin is breaking with Democrats and throwing his weight behind a more measured voting rights bill in lieu of the sweeping Democratic voting reform<https://abcnews.go.com/US/video/senate-takes-voting-rights-bill-77629153> bill that Majority Leader Chuck Schumer has labeled a top priority of the caucus.

The Democrat from West Virginia told ABC News exclusively that he intends to support the John Lewis<https://abcnews.go.com/alerts/john-lewis> Voting Rights Act, a more narrowly tailored piece of voting rights legislation that he said he believes could muster bipartisan support<https://abcnews.go.com/Politics/senate-democrats-move-forward-voting-rights-bill-republican/story?id=76653784> even as voting legislation is becoming a flash point between the two parties.

“I believe Democrats and Republicans feel very strongly about protecting the ballot boxes allowing people to protect the right to vote making it accessible making it fair and making it secure and the John Lewis Voting Rights Act, if we apply that to all 50 states and territories, it’s something that can be done — it should be done,” Manchin told ABC News congressional correspondent Rachel Scott. “It could be done bipartisan to start getting confidence back in our system.”…

Manchin said Tuesday’s mark-up made clear to him that the robust Democratic bill, which he has already said he does not support, has no hope of mustering the necessary 60 votes to pass.

“No matter what was brought up it was partisan vote, 9-9,” Manchin said. “This is one of the most — I think — important things that we can do to try to bring our country back together and if we do it in a partisan way, it’s not going to be successful I believe.”…

He’s so committed to working in a bipartisan way<https://abcnews.go.com/Politics/biden-talks-compromise-meets-congressional-leadership/story?id=77645118%5d> that he’s vowed not to use other measures that would allow the Senate to pass the legislation with a simple majority.

For example, Manchin said he won’t support the use of reconciliation, a procedural tool that allows the Senate to bypass the usual 60-vote threshold necessary to pass legislation, to move the John Lewis Voting Rights Act.

He also won’t support a one-time change to the Senate filibuster rule, despite pleas from some advocates.

“If you do it for one time you basically destroy the Senate as we know it,” Manchin said.
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>

“‘Normal tourist visit’: Republicans recast deadly Jan. 6 attack by pro-Trump mob”<https://electionlawblog.org/?p=122115>
Posted on May 13, 2021 7:08 am<https://electionlawblog.org/?p=122115> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/trump-riot-capitol-republicans/2021/05/12/dcc03342-b351-11eb-a980-a60af976ed44_story.html>

Several House Republicans on Wednesday tried to recast and downplay the events of Jan. 6, comparing the mob that breached the Capitol to tourists, railing against law enforcement for seeking to arrest them and questioning how anyone could be sure the rioters were supporters of President Donald Trump.

The Republicans’ distortions about the most violent attack on the Capitol since the War of 1812 defy the well-documented reality of what occurred that day — 140 police officers were injured, some bludgeoned with flagpoles and baseball bats, with one officer’s eye gouged out; rioters chanted “Hang Mike Pence” and erected a gallows on the Capitol grounds; and members of the House and the Senate were rushed to safety in secure locations for several hours. The attack resulted in five dead.

The comments by a handful of House Republicans came during a congressional hearing with former acting attorney general Jeffrey Rosen, former acting defense secretary Christopher C. Miller and D.C. Police Chief Robert J. Contee III, focused understanding the security lapses that allowed the Jan. 6 attack to happen.

A handful of Republicans used their time to defend the actions of those who stormed past security barricades and broke into the Capitol with the intent of stopping the affirmation of Joe Biden’s election victory. Trump repeatedly and falsely has claimed widespread fraud resulted in a rigged election.

Shortly before the hearing got underway, House Republicans voted to remove Rep. Liz Cheney (R-Wyo.) from caucus leadership, after she broke with the party in repeatedly denouncing Trump for his false election claims.

Rep. Andrew S. Clyde (R-Ga.) downplayed the events of Jan. 6 as “acts of vandalism” and suggested it was a “boldfaced lie” to call what happened that day an “insurrection.”

“Watching the TV footage of those who entered the Capitol and walked through Statuary Hall showed people in an orderly fashion staying between the stanchions and ropes, taking videos, pictures,” Clyde said. “You know, if you didn’t know the TV footage was a video from January the 6th, you would actually think it was a normal tourist visit.”
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>

Georgia: “Jody Hice, in pitch to become secretary of state, spreads election falsehoods”<https://electionlawblog.org/?p=122113>
Posted on May 13, 2021 6:55 am<https://electionlawblog.org/?p=122113> by Rick Hasen<https://electionlawblog.org/?author=3>

AJC:<https://www.ajc.com/politics/politics-blog/the-jolt-jody-hice-in-pitch-to-become-secretary-of-state-spreads-election-falsehoods/MMA435OGZBCRTNZTM3QCYRBD4I/>

Andrew Clyde isn’t the only Georgia Republican member of Congress testing the limits of fact-checkers this week. (See more about his controversy below.)

His colleague, U.S. Rep. Jody Hice, sent out a three-page letter to Georgia conservatives promoting his challenge to Secretary of State Brad Raffensperger.

He opened with lies that the 2020 election was beset by “systemic voting irregularities and fraud.” He called Raffensperger a “back-stabbing” Republican for refusing Donald Trump’s demand to overturn the results.

And he falsely claimed Raffensperger worked “arm and arm with Stacey Abrams to deliver the presidency and Senate to the radical left.”

“That’s why I’m giving up a safe seat in Congress to run for Georgia Secretary of State,” he wrote, “to stop Democrats before they rig and ruin our democracy forever.”

There was no widespread fraud in Georgia’s election, and the results were upheld in three separate tallies and defended by state and federal elections officials.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“Opinion: Ranked-choice voting works. Get used to it.”<https://electionlawblog.org/?p=122111>
Posted on May 13, 2021 6:52 am<https://electionlawblog.org/?p=122111> by Rick Hasen<https://electionlawblog.org/?author=3>

Karen Tumulty WaPo column<https://www.washingtonpost.com/opinions/2021/05/12/ranked-choice-voting-works-get-used-it/>.
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Posted in alternative voting systems<https://electionlawblog.org/?cat=63>

“McCarthy after ousting Cheney: ‘I don’t think anybody is questioning the legitimacy of the presidential election'”<https://electionlawblog.org/?p=122109>
Posted on May 13, 2021 6:51 am<https://electionlawblog.org/?p=122109> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/news/2021/05/12/mccarthy-2020-election-legitimacy-487612?nname=california-playbook&nid=00000150-384f-da43-aff2-bf7fd35a0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=641189>:

House Minority Leader Kevin McCarthy on Wednesday papered over the significant skepticism of the 2020 presidential election within the GOP just hours after his conference deposed Rep. Liz Cheney for criticizing fellow Republicans over that very issue.

“I don’t think anybody is questioning the legitimacy of the presidential election,” McCarthy said after meeting with President Joe Biden at the White House alongside other congressional leaders.

McCarthy’s comments run counter to the the campaign he greenlighted to boot Cheney<https://www.politico.com/news/2021/05/12/liz-cheney-removed-leadership-position-487522> (R-Wyo.), until today the GOP’s highest-ranking woman, from her role as conference chair. Cheney put herself at odds with former President Donald Trump and his wing of the party after openly admonishing him for repeatedly perpetuating false claims about the 2020 elections and his role in inciting a deadly riot at the Capitol in January.

“We have seen the danger that he continues to provoke with his language,” Cheney told reporters after Wednesday’s closed-door vote. “We have seen his lack of commitment and dedication to the constitution. And I think it’s very important that we make sure whomever we elect is somebody who will be faithful to the constitution.”
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>

Important E.J. Dionne: “The GOP’s past election lies led to Trump’s big one”<https://electionlawblog.org/?p=122107>
Posted on May 12, 2021 3:08 pm<https://electionlawblog.org/?p=122107> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo column:<https://www.washingtonpost.com/opinions/the-gops-past-election-lies-led-to-trumps-big-one/2021/05/12/83ff231e-b359-11eb-9059-d8176b9e3798_story.html>

The situation today reflects the worst tendencies of the pre-Trump era in extreme form. Trump didn’t invent most of what is central to his appeal; he says the ugliest, once-whispered parts out loud. And responsible Republicans who see how dangerous Trumpism is find themselves hamstrung because so many of his claims are already familiar to the party’s base.

Recall, for example, the scandal during the George W. Bush administration over the firing of federal prosecutors who resisted pressure to bring voter-fraud cases.

Their resistance was not surprising since, as Henderson observed, “arguments about voter fraud have no basis in fact” and fraud claims have a long, sorry history, dating to the violent backlash against Black enfranchisement during Reconstruction.

But as the New York Times reported in 2007<https://www.nytimes.com/2007/04/12/washington/12fraud.html>, the “fraud rallying cry became a clamor in the Florida recount after the 2000 presidential election,” even as Republican lawmakers elsewhere voiced “similar accusations of compromised elections.” Bush’s attorney general announced that voter fraud would be high on his agenda.

The effort “backfired badly,” the Brennan Center for Justice reported<https://www.brennancenter.org/our-work/research-reports/justice-departments-voter-fraud-scandal-lessons>. “The Justice Department was upended by scandal because it had pursued a partisan agenda on voting, under the guise of rooting out suspected ‘voter fraud,’ ” the center concluded. “Its actions during the George W. Bush administration were well outside the bounds of rules and accepted norms of neutral law enforcement.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“How Voter Suppression Laws Impede Religious Liberty: The Next Frontier of Litigation”<https://electionlawblog.org/?p=122104>
Posted on May 12, 2021 3:04 pm<https://electionlawblog.org/?p=122104> by Rick Hasen<https://electionlawblog.org/?author=3>

Alan Neff and Caroline Fredrickson at Just Security<https://www.justsecurity.org/76017/how-voter-suppression-laws-impede-religious-liberty-the-next-frontier-of-litigation/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

California: “Redistricting commission accused of violating open-meetings law and other failures”<https://electionlawblog.org/?p=122102>
Posted on May 12, 2021 8:44 am<https://electionlawblog.org/?p=122102> by Rick Hasen<https://electionlawblog.org/?author=3>

LAT:<https://www.latimes.com/politics/story/2021-05-12/redistricting-commission-open-meetings-law-failures>

California voters created an independent redistricting commission to stop lawmakers and powerful interests from drawing gerrymandered congressional and legislative districts that consolidated their power at the expense of fair representation.

That commission is now accused of routinely flouting the law by holding closed-door meetings and other acts that threaten to undermine its impartiality as it prepares to draw new maps.

“The commission’s ‘outreach’ efforts are being conducted in violation of the transparency provisions of” state law, Charles Munger Jr., a major Republican donor<https://www.latimes.com/local/politics/la-me-adv-munger-20150304-story.html> who funded the propositions that created the commission, wrote in a May 7 letter to the body. “It is important both that this stop and that it not set a precedent for how the commission conducts itself.”

Among Munger’s concerns: commissioners routinely meeting privately with various parties — including legislative representatives, Google and Common Cause — without public notice, opportunity for public input or a record of the meeting. He also says the commission’s hiring of a law firm that has long represented the state Legislature creates a conflict of interest, and he faults the body for failing to make public records, video and transcripts available in a timely manner.
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Posted in redistricting<https://electionlawblog.org/?cat=6>

“Exchange Over ‘Purity’ of Vote Puts Texas G.O.P. Firebrand in Spotlight; Briscoe Cain stumbled through questions about ‘purity of the ballot box’ language in Texas’ voting bill, acknowledging he was unaware that it evoked Jim Crow policies of the past. He is the bill’s sponsor.”<https://electionlawblog.org/?p=122100>
Posted on May 12, 2021 7:02 am<https://electionlawblog.org/?p=122100> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT.<https://www.nytimes.com/2021/05/12/us/politics/briscoe-cain-texas-voting-laws.html?action=click&module=Top%20Stories&pgtype=Homepage>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Why a Lifelong Republican Views Arizona’s Recount as Wrong”<https://electionlawblog.org/?p=122098>
Posted on May 12, 2021 6:59 am<https://electionlawblog.org/?p=122098> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/05/11/us/politics/arizona-election-recount.html?smid=tw-share>

For several weeks, Republicans in Arizona have conducted an extraordinary audit into the results of November’s presidential election, drawing scrutiny and widespread criticism for examining ballots without any evidence of fraud, and instead relying on conspiracy theories. The audit is expected to continue for weeks, if not months, prodded on by Republicans in the State Legislature, who have perpetuated former President Donald J. Trump’s falsehood that the election was stolen from him.

One of the most outspoken Republican critics of the audit is Bill Gates, who was re-elected as a Maricopa County supervisor in 2020, and along with other supervisors helps oversee the county’s election procedures.

Mr. Gates is a lifelong Republican who once worked as an election lawyer for the party. He considers himself a loyal member of the G.O.P. and points to former President Ronald Reagan as an inspiration for his interest in politics. But he is horrified at the partisan audit taking place in his district, saying that the recounts Arizona already conducted had sufficiently validated the results of the election.

We spoke to Mr. Gates about the recount, the future of the Republican Party and what he, along with millions of others, calls the “big lie.” The interview has been lightly edited and condensed for clarity.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Trump’s acting attorney general to affirm there was no evidence of widespread voter fraud in 2020”<https://electionlawblog.org/?p=122096>
Posted on May 12, 2021 6:55 am<https://electionlawblog.org/?p=122096> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/05/11/us/politics/rosen-fraud-congress-testimony-trump.html>

The top Justice Department official at the time of the Jan 6. attack on the Capitol is expected to tell lawmakers on Wednesday that the department saw no evidence to undercut President Biden’s election win, even as Republicans continue to question the results and use those doubts to underpin restrictive voting laws.

The Justice Department “had been presented with no evidence of widespread voter fraud <https://www.nytimes.com/2021/05/04/opinion/gop-trump-2020-election.html?searchResultPosition=12> at a scale sufficient to change the outcome of the 2020 election,” Jeffrey A. Rosen<https://www.nytimes.com/video/us/politics/100000007550007/acting-attorney-general-capitol-riot.html?searchResultPosition=4>, who served as the acting attorney general for the final month of the Trump administration, said in a prepared statement to the House Oversight Committee.

The department chose not to participate in legal challenges to the certification <https://www.nytimes.com/interactive/2021/01/06/us/politics/electoral-college-certification-live-stream.html?searchResultPosition=3> of the Electoral College results based on that assessment, his opening statement said, declining to appoint special prosecutors to look into election fraud or to ask state officials to overturn the results.
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Posted in Department of Justice<https://electionlawblog.org/?cat=26>

“Listen: National elections expert tells The Gaggle podcast what Arizona’s ballot audit means for US”<https://electionlawblog.org/?p=122094>
Posted on May 12, 2021 6:53 am<https://electionlawblog.org/?p=122094> by Rick Hasen<https://electionlawblog.org/?author=3>

Enjoyed being on this Arizona Republic podcast.<https://www.azcentral.com/story/news/politics/arizona/2021/05/12/gaggle-podcast-how-arizonas-ballot-audit-could-affect-future-elections/5047745001/>
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>

RCV Wins Bipartisan Support in Utah<https://electionlawblog.org/?p=122091>
Posted on May 12, 2021 5:42 am<https://electionlawblog.org/?p=122091> by Richard Pildes<https://electionlawblog.org/?author=7>

From Fair Vote:<https://www.fairvote.org/big_wins_for_ranked_choice_voting_in_utah_and_virginia>

A record 23 cities in Utah passed ranked choice voting ordinances for elections in 2021, more than doubling the number of elections that will allow voters to rank mayoral candidates. Altogether, with these added cities, 53 jurisdictions are projected to use RCV in upcoming elections. The 23 Utah cities, which includes Salt Lake City (population 200,000), each voted to adopt ranked choice voting specifically for municipal elections in the fall of 2021. Those cities will vote each year to continue using ranked choice voting.

Coincidentally, I had recently flagged here<https://electionlawblog.org/?p=121885> a piece on why conservatism in Utah is different from that in many other states.
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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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