[EL] ELB News and Commentary 10/21/19

Rick Hasen rhasen at law.uci.edu
Mon Oct 21 20:38:44 PDT 2019

Save the Date (Feb. 28, 2020) for Important UCI Conference: “Can American Democracy Survive the 2020 Elections?”<https://electionlawblog.org/?p=107761>
Posted on October 21, 2019 8:33 pm<https://electionlawblog.org/?p=107761> by Rick Hasen<https://electionlawblog.org/?author=3>

I’ve been working with UCI Law staff on putting this Feb, 28, 2020 event together<https://www.law.uci.edu/events/election-law/election-2020/> for some time, and more details will be forthcoming, but for now, here’s a save the date:

Can American Democracy Survive the 2020 Elections?

The role of media, law, political norms, and technology in assuring acceptance of election results.

February 28, 2020
8:15 a.m.–5:00 p.m.
UCI Division of Continuing Education, Yosemite Ballroom

RSVP details to come

This event is presented in conjunction with the UCI Jack W. Peltason Center for the Study of Democracy and with the generous support of the Democracy Fund, the William and Flora Hewlett Foundation, and the Mertz Gilmore Foundation.
·         Andrew Appel. Eugene Higgins Professor of Computer Science, Princeton University
·         Julia Azari, Associate Professor and Assistant Chair of Political Science, Marquette University
·         David Becker, Executive Director & Founder, Center for Election Innovation and Research
·         The Hon. Jocelyn Benson, Secretary of State, Michigan
·         Bruce Cain, Professor of Political Science, Stanford University
·         Jack Doppelt, Hamad bin Khalifa Al Thani Professor of Journalism, Northwestern University
·         Tiana Epps-Johnson, Founder & Executive Director, Center for Technology and Civic Life
·         Ned Foley, Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law; Director, Election Law @ Moritz, Ohio State University
·         John Fortier, Director of Governmental Studies, Bipartisan Policy Center
·         Patty Hansen, Coconino County, AZ Recorder
·         Rick Hasen, Chancellor’s Professor of Law and Political Science, UCI Law
·         Liz Howard, Counsel, Brennan Center’s Democracy Program
·         Jessica Huseman, Voting Rights and Election Administration Reporter, ProPublica
·         David Kaye, Clinical Professor of Law, International Justice Clinic Director (UCI Law), and UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression
·         Neal Kelley, Orange County, CA Registrar
·         The Hon. Frank LaRose, Secretary of State, Ohio
·         Matt Masterson, U.S. Department of Homeland Security
·         Michael Morley, Assistant Professor of Law, Florida State University
·         Janai Nelson, Associate Direct-Counsel, NAACP Legal Defense and Educational Fund
·         Brendan Nyhan, Professor of Government, Dartmouth College
·         Cailin O’Connor, Associate Professor of Logic and Philosophy Science, UCI School of Social Sciences
·         Norm Ornstein, Resident Scholar, AEI
·         Nina Perales, Vice President of Litigation, MALDEF
·         Nate Persily, James B. McClatchy Professor of Law, Stanford University
·         Rick Pildes ,Sudler Family Professor of Constitutional Law, NYU
·         Song Richardson, Dean and Chancellor’s Professor of Law, UCI Law
·         Bertrall Ross, Chancellor’s Professor of Law, UC Berkeley
·         Alex Stamos, Director, Stanford Internet Observatory, Stanford University
·         Charles Stewart, Kenan Sahin Distinguished Professor of Political Science, MIT
·         Michael Tesler, Associate Professor of Political Science, UCI School of Social Sciences
·         Ciara Torres-Spelliscy, Professor of Law, Stetson University
·         James Weatherall, Professor of Logic and Philosophy of Science, UCI School of Social Sciences
·         Amy Wilentz, Professor of English, UCI School of Humanities
·         Kim Zetter, Independent Journalist
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Facebook Finds New Disinformation Campaigns and Braces for 2020 Torrent”<https://electionlawblog.org/?p=107759>
Posted on October 21, 2019 8:28 pm<https://electionlawblog.org/?p=107759> by Rick Hasen<https://electionlawblog.org/?author=3>


Facebook said on Monday that it had recently found and taken down four state-backed disinformation campaigns<https://newsroom.fb.com/news/2019/10/inauthentic-behavior-policy-update/>, the latest of dozens that it has identified and removed this year and a sign of how foreign interference online is increasing ahead of the 2020 presidential election.
Three of the disinformation campaigns originated in Iran<https://newsroom.fb.com/news/2019/10/removing-more-coordinated-inauthentic-behavior-from-iran-and-russia/> and one in Russia, Facebook said, with state-backed actors disguised as genuine users. The campaigns were aimed at people in North Africa, Latin America and the United States, the company said.

The posts crossed categories and ideological lines, seemingly with no specific intent other than to foment discord. Some of the posts touched on conflict in the Middle East, while others pointed to racial strife and some invoked Alexandria Ocasio-Cortez, a Democratic congresswoman from New York, according to examples provided by Facebook.

One of the campaigns focused more on the 2020 election. In that campaign, 50 accounts linked to Russia’s Internet Research Agency — a Kremlin-backed professional troll farm — targeted candidates for the Democratic presidential nomination including former Vice President Joseph R. Biden Jr. and Senators Bernie Sanders and Elizabeth Warren, according to an analysis from Graphika, a social media research firm. Roughly half of those accounts claimed to be based in swing states. The Internet Research Agency was also responsible for targeting the American electorate during the 2016 presidential election.
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Supreme Court wipes out ruling on Michigan partisan gerrymander”<https://electionlawblog.org/?p=107757>
Posted on October 21, 2019 8:12 pm<https://electionlawblog.org/?p=107757> by Rick Hasen<https://electionlawblog.org/?author=3>

Pete Williams:<https://www.nbcnews.com/politics/supreme-court/supreme-court-wipes-out-michigan-partisan-gerrymander-ruling-n1069476>

The Supreme Court on Monday threw out a challenge to maps drawn by Republicans for state legislative and congressional district boundaries in Michigan.

The decision, which allows the GOP districts to stand, was expected because the court declared in June that such challenges involve an issue that is essentially political, beyond the authority of federal courts to resolve on legal grounds.
Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>

“End the Electoral College?”<https://electionlawblog.org/?p=107755>
Posted on October 21, 2019 5:36 pm<https://electionlawblog.org/?p=107755> by Rick Hasen<https://electionlawblog.org/?author=3>

Harvard Gazette:<https://news.harvard.edu/gazette/story/2019/10/harvard-panel-debates-effectiveness-of-electoral-college/>

With the 2020 race for the White House in full swing, speakers at a Harvard panel on Saturday sharply differed on whether an interstate compact to effectively disable the Electoral College and move to a national popular vote offers an antidote to problems with the presidential selection system.

“We are not seeking perfection. We are seeking a more perfect union,” National Popular Vote advocate Rob Richie said during the discussion, part of a conference at Harvard Law School on the history and future of the Electoral College hosted by the Harvard Law & Policy Review.
Posted in electoral college<https://electionlawblog.org/?cat=44>

“Campaign Finance Law Should Do More To Prevent Donor Harassment”<https://electionlawblog.org/?p=107753>
Posted on October 21, 2019 5:28 pm<https://electionlawblog.org/?p=107753> by Rick Hasen<https://electionlawblog.org/?author=3>

Brad Smith oped<https://dailycaller.com/2019/10/21/smith-donor-harassment> in the Daily Caller. Although Brad correctly quotes me as saying that I support raising the donor thresholds, it is not because I believe there is a serious increase in unconstitutional harassment (I don’t<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1948313>). It is because I believe that there should be a realm of donor privacy for relatively small players in the political process—not much is gained when the public learns the identity of a $100 donor, for example.
Posted in campaign finance<https://electionlawblog.org/?cat=10>

City of Santa Monica Files Opening Brief in Its California Voting Rights Act Appeal<https://electionlawblog.org/?p=107750>
Posted on October 21, 2019 5:06 pm<https://electionlawblog.org/?p=107750> by Rick Hasen<https://electionlawblog.org/?author=3>

Pay attention to the constitutional avoidance arguments here.<https://electionlawblog.org/wp-content/uploads/2019.10.18_Citys-Opening-Brief.pdf>
Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>

Robert Bennett: Are Presidential Election Ballots Invalid?<https://electionlawblog.org/?p=107748>
Posted on October 21, 2019 4:47 pm<https://electionlawblog.org/?p=107748> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is a guest post from Robert William Bennett<http://www.law.northwestern.edu/faculty/profiles/RobertBennett/> of Northwestern Law:

            The United States Court of Appeals for the Tenth Circuit recently held unconstitutional a Colorado law that forbade the state’s presidential electors from voting “faithlessly.” Under the statute electors were required to take an oath to vote for the presidential (and vice-presidential) candidates who received the most votes in the state on “election day.” If at the state electoral college meeting about forty days later an elector violated that oath and voted “faithlessly,” under the state law he or she would be replaced, a substitute elector would be appointed, and that substitute would then take an oath and vote “faithfully” (or again be replaced).

            This problem of faithless electors is receiving more attention lately. There was an earlier (but recent) decision of the Supreme Court of Washington, upholding a fine of $1000 if an elector voted faithlessly. And the attention may be increasing, particularly because Colorado has filed a cert petition to challenge the Tenth Circuit decision in the United States Supreme Court.

            One problem with the Tenth Circuit’s decision has gotten no visible attention of which I am aware, viz. the validity of election day ballots across the nation if faithless elector voting is constitutionally protected. In a large number of states, those ballots make no mention whatsoever of a role for presidential electors. That was the case, for instance, in the Illinois ballot I cast in the last presidential election. And even in the states where the presidential portion refers to electors—or in some cases even includes the names of elector candidates—the reference is typically in fine print, as are any included names. Considerably more prominent are the names of the presidential (and vice-presidential) candidates of the political parties that also nominated the listed elector candidates. And in no states can an election day voter vote for some but not all of the political party’s candidates for elector. The elector selection is “winner-take-all” (except in Maine and Nebraska where separate counts are made in congressional districts for all but two of the state’s electors). This makes the election day “election” a sham if faithlessness is allowed forty days later, because election day voters have no idea what they are voting for. There is then an entirely plausible argument that the ballots are themselves unconstitutional.

            Nor is there any very plausible remedy. Conceivably eligible voters could file a lawsuit well before election day trying to force their states to revise the election rules and the ballots to make clear that the election is about electors, not executive office candidates. But even if successful that itself would likely be disruptive, because states do not want the election to be for electors rather than the “real” candidates. And the states might then hold separate elections—even on separate days for those “electors” and for any other state offices traditionally in play on election day.

             There is a much simpler solution to this dilemma of the misleading ballot, and that is to reject the Tenth Circuit’s reasoning and result, i.e. to require faithful elector voting in all states unless perhaps the state law explicitly allows faithless voting (which is very unlikely). The Supreme Court could do that if it grants the cert petition and then reverses the Tenth Circuit decision on the merits. But the Tenth Circuit’s opinion advances what it thinks of as originalist reasoning, reciting, inter alia, the eighteenth century “meaning” of various words in the presidential selection provisions of the Constitution. I do not think that that “originalist” reasoning is terribly persuasive, failing as it does to give weight to the monumental changes over the years in the ways the entire country thinks about the functioning of the electoral college—indeed how the constitutional draftsmen would in all likelihood think about the twenty-first century electoral college if they could be transported to the present day and educated about what had happened in the meantime. But there are several Justices on the United States Supreme Court who think of themselves as strict originalists and who might buy into that flawed constitutional interpretation.

            If the case does reach the Supreme Court, the Court must be made to appreciate that the Tenth Circuit decision cannot be accepted, because it would pose a serious challenge to the functioning of American government. This is actually for two related reasons. The first is that the Tenth Circuit decision invites a “presidential election” result from the electoral college that tells the country that the election day result announced to it forty days earlier was wrong, not because the election day count was wrong but because of “faithless” electors who refused to abide by that count. And the second is that the election day ballots deceptively led the voting public to believe that what those ballots told them was true.
Posted in ballot access<https://electionlawblog.org/?cat=46>, electoral college<https://electionlawblog.org/?cat=44>

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>

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