“Election Meltdown, Part 5; Doomsday scenarios and hopeful actions in the final part of our voting-rights series.”

You can listen to the final episode of the Election Meltdown podcast (in conjunction with Dahlia Lithwick and Slate Amicus) at this link. From the Episode Notes:

In the fifth and final part of this special series of Amicus, Dahlia Lithwick is joined live on stage in Washington by former Florida gubernatorial candidate Andrew Gillum, MacArthur fellow Professor Danielle Citron of Boston University law school, director of the ACLU’s voting-rights initiative Dale Ho, and election law professor Rick Hasen of the University of California, Irvine. Together, they pick themselves up from the rug of despair with a pile of can-do fixes for the stress points threatening the integrity of U.S. elections.

Rick Hasen’s new book Election Meltdown forms the basis for this special series of Amicus.

Podcast production by Sara Burningham

I want to offer my deep appreciation to producer Sara Burningham and co-host Dahlia Lithwick for a series that has far exceeded my expectations when I first thought turning my book into a podcast series. Dahlia’s wit and wisdom made the topic as entertaining as it was terrifying and Sara is a brilliant producer who could take a string of random thoughts and make them into a coherent and beautifully produced story. Thanks as well to Gabriel Roth of Slate podcasts for supporting the project. And thanks to all those who gave interviews and participated in the Slate Live! event.

Here is the full list of Election Meltdown episodes (although there will be two more bonus episodes coming for Slate Plus members):

Episode 1, The voter fraud that wasn’t, the voter suppression that is. 
Episode 2, Paper jams, lost forms, and lost boxes—incompetence and elections
Episode 3, Delving into the big bag of dirty tricks ahead of the 2020 election
Episode 4, Rhetoric and reality: When is it OK to say an election was ‘stolen’?
Episode 5, Doomsday scenarios and hopeful actions in the final part of our voting-rights series.

Bonus Episode 1 (Slate Plus) (Interview with Matt Dunlap)
Bonus Episode 2 (Slate Plus) (Interview with Jocelyn Benson)
Bonus Episode 3 (Slate Plus) (Interview with Brendan Nyhan)
Bonus Episode 4 (Slate Plus) (Interview with Dale Ho)

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“Florida Republicans quietly stir up more election mischief”

Steve Bosquet column:

They can’t help themselves.

Republicans in Tallahassee have an insatiable desire to tamper with Florida election laws — especially when President Trump is desperate to win the nation’s largest swing state again. An elections bill moving through the Senate has received almost no attention, which is the way lawmakers like it.

Senate Bill 1372 makes some housekeeping changes that election supervisors want. But then it goes beyond what they requested by allowing political parties to assign poll watchers to monitor voting at the polls, no matter where they live in Florida. Current law restricts poll watchers to the county where they vote.

This is an obvious attempt to make it easier to recruit a lot more poll watchers — many of them lawyers — who can legally challenge any voter’s eligibility to cast a ballot.

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“Orange County Sent Incorrect Voter Registration Data To State Of Florida”

WLRN:

The Orange County Supervisor of Elections Office is blaming a widely used elections software company for a false report to the state that nearly a quarter million registered voters had been removed from the county’s voting rolls. 

That incorrect number made it into a monthly data report by the Florida Division of Elections. The report lists 257,698 “active” voters that were removed from the voting rolls across the state in January. Out of that total number, 239,147 of the removed voters were from Orange County alone.

The published data would have meant that Orange County removed more than 150 times the total number of voters as compared to the county with the second-most voters removed. It also would have meant that more “active” voters were removed from voting rolls from a single county and during a single month than the total number of voters removed from across the entire state annually going back to 2017, according to state data.

Questioned about the outlier data, the Orange County Supervisor of Elections said the information it sent to the state was incorrect. The office pointed the finger at software from VR Systems, a third-party company that started handling the county’s voter registration system in mid-December

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“FBI Arrests Hacker Linked to Former Rep. Katie Hill’s Campaign”

The Intercept:

Federal agents have arrested Arthur Dam in connection with a hacking spree that disrupted the 2018 Democratic California primary that ultimately nominated Katie Hill, according to a new criminal complaint.

Dam, in the criminal complaint, is linked directly to the Hill campaign. Hill won the general election in California’s 25th District and then later resigned from Congress amid controversy.

“Dam was found to be connected to the cyber attacks through subscriber information, IP addresses, geolocation history, and open sources, including through his employer and his wife, K.O., who worked for one of the Victim’s opponents,” the complaint reads.

Dam’s wife is Kelsey O’Hara, Hill’s fundraiser during the campaign and her district director after she won office. O’Hara was also the subject of a sexual remark made by Hill and caught on tape by Vice News in 2018. In Hill’s Federal Election Commission records, she lists a $500 in-kind contribution from Dam on March 25, 2018, for “graphic design and website security consultation.”…

During the campaign, the websites of Hill’s opponents, Democrats Jess Phoenix and Bryan Caforio, who was supported by Justice Democrats, were both attacked, though Hill’s never was, raising suspicions at the time that Hill’s campaign was behind them. One major attack on Caforio’s campaign website came at a crucial moment, just an hour before the biggest debate of the primary, the complaint notes. Hill eventually won the California primary by fewer than 3,000 votes.

The FBI launched a probe that zeroed in on the Hill campaign in 2019, according to FBI correspondence reviewed by The Intercept. Hill did not immediately respond for comment.

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“Bernie Sanders briefed by U.S. officials that Russia is trying to help his presidential campaign”

WaPo:

U.S. officials have told Sen. Bernie Sanders that Russia is attempting to help his presidential campaign as part of an effort to interfere with the Democratic contest, according to people familiar with the matter.

President Trump and lawmakers on Capitol Hill also have been informed about the Russian assistance to the Vermont senator, those people said, speaking on the condition of anonymity to discuss sensitive intelligence.

It is not clear what form that Russian assistance has taken. U.S. prosecutors found a Russian effort in 2016 to use social media to boost Sanders’s campaign against Hillary Clinton, part of a broader effort to hurt Clinton, sow dissension in the American electorate and ultimately help elect Donald Trump.

“I don’t care, frankly, who [Russian President Vladimir] Putin wants to be president,” Sanders said in a statement. “My message to Putin is clear: Stay out of American elections, and as president I will make sure that you do.

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“Election Officials Are Already Raising Flags About Nevada’s Results”

Steven Rosenfeld reports.

Despite Mahler’s enthusiasm, there were signs that delays or problems counting early votes could shadow 2020’s third Democratic presidential nominating contest. These complications would unfold behind closed doors at vote-counting hubs run by the Nevada State Democratic Party (NSDP). The possible problems concern the system used to scan and count tens of thousands of paper early ballots, as well as the database tracking all of the voters and their votes.

Nearly 75,000 people voted early, the NSDP said. That process continues on Saturday, February 22, with precinct caucuses across the state.

Top party officials have not responded to numerous requests to comment about the last-minute voter-tracking and vote-counting system that it will be using after it jettisoned the same reporting and counting technology that failed in Iowa’s Democratic Party presidential caucuses on February 3.

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“Trump Ads Will Take Over YouTube’s Homepage on Election Day”

Bloomberg:

In the immediate run up to the U.S. presidential election and on Election Day, the homepage of YouTube is set to advertise just one candidate: Donald Trump.

The president’s re-election campaign purchased the coveted advertising space atop the country’s most-visited video website for early November, said two people with knowledge of the transaction. The deal ensures Trump will be featured prominently in the key days when voters across the country prepare to head to the polls Nov. 3.

While the bulk of digital ad spending typically focuses on targeting specific messages to certain audiences, the top spot on YouTube is more akin to a Super Bowl TV ad. About three-quarters of U.S. adults say they use YouTube, exceeding the reach of even Facebook, according to the Pew Research Center.

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“Bloomberg’s manipulated debate video earns Four Pinocchios”

WaPo:

In anticipation of the presidential election season, The Fact Checker last year worked with The Washington Post video department to produce a guide to manipulated video. The goal was to produce a common language to identify and label video that is designed to mislead viewers.

Well, in the wake of a widely panned debate performance, Bloomberg’s campaign produced a doozy.

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“Political ads are flooding Hulu, Roku and other streaming services, revealing loopholes in federal election laws”

WaPo:

The ad that interrupted some Hulu subscribers as they watched the NBC comedy “Brooklyn Nine-Nine” this month opened with a clip of President Trump speaking.

“The ‘deep state’ is trying to inject our health system with socialist price controls,” a narrator then interjected, before a banner flashed at the bottom of the screen: “TEXT ‘SOCIALISM SUCKS’ TO 41490.”

But neither FreedomWorks, the conservative group behind the ad, nor Hulu, a television-and-movie streaming giant, is required to reveal much more to the public about the 30-second spot or whom it targeted, leaving watchdogs and regulators fearful that federal election laws aren’t fit for the digital age — and that voters remain vulnerable to manipulation.

Four years after Russian agents exploited popular online platforms to push propaganda, sow unrest and promote the Trump candidacy, the U.S. government has made virtually no progress on bringing more transparency to paid political speech. The risks remain high that voters could be duped and deceived by foreign governments, U.S. candidates and advocacy groups — particularly online, where major regulatory gaps exist.

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“Russia Backs Trump’s Re-election, and He Fears Democrats Will Exploit Its Support”

NYT:

Intelligence officials warned House lawmakers last week that Russia was interfering in the 2020 campaign to try to get President Trump re-elected, five people familiar with the matter said, in a disclosure that angered Mr. Trump, who complained that Democrats would use it against him.

The day after the Feb. 13 briefing to lawmakers, Mr. Trump berated Joseph Maguire, the outgoing acting director of national intelligence, for allowing it to take place, people familiar with the exchange said. Mr. Trump cited the presence in the briefing of Representative Adam B. Schiff, the California Democrat who led the impeachment proceedings against him, as a particular irritant.

During the briefing to the House Intelligence Committee, Mr. Trump’s allies challenged the conclusions, arguing that Mr. Trump has been tough on Russia and strengthened European security. Some intelligence officials viewed the briefing as a tactical error, saying that had official who delivered the conclusion spoken less pointedly or left it out, they would have avoided angering the Republicans.

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“After a congressional briefing on election threats, Trump soured on acting spy chief”

WaPo:

Maguire had been considered a leading candidate to be nominated for the DNI post, White House aides had said. But Trump’s opinion shifted last week, after he heard from a GOP ally that the intelligence official in charge of election security, who works for Maguire, gave a classified briefing last Thursday to the House Intelligence Committee on 2020 election security.

It’s unclear what the official, Shelby Pierson, specifically said at the briefing that angered Trump, But the president erroneously believed that she had given information exclusively to Rep. Adam Schiff (D-Calif.), the committee chairman, and it would be helpful to Democrats if released publicly, the people familiar with the matter said. Schiff was the lead impeachment manager, or prosecutor, during Trump’s Senate trial over abuse of power and obstruction of Congress.

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“Reconstructing Racially Polarized Voting”

Travis Crum has posted this draft on SSRN (forthcoming, Duke Law Journal). Here is the abstract:

Racially polarized voting makes minorities more vulnerable to discriminatory changes in election laws and therefore implicates nearly every voting rights doctrine. In Thornburg v. Gingles, the Supreme Court held that racially polarized voting is a necessary—but not a sufficient—condition for a vote-dilution claim under Section 2 of the Voting Rights Act. The Court, however, has recently questioned the propriety of recognizing the existence of racially polarized voting. This colorblind approach threatens not only the Gingles factors but also Section 2’s constitutionality.

The Court treats racially polarized voting as a modern phenomenon. But the relevant starting point is the 1860s, not the 1960s. Prior to the Fifteenth Amendment’s passage, Republicans had already received overwhelming support from newly enfranchised black voters in the former Confederate States and expected that support to continue. The Reconstruction Framers were thus attentive to the realities of racially polarized voting and openly recognized that extending the franchise would empower blacks to mobilize politically and protect their own interests. Racially polarized voting was a feature—not a bug—in the passage and ratification of the Fifteenth Amendment. Accordingly, this Article argues that the Court’s treatment of racially polarized voting as a constitutional taboo is historically unfounded and doctrinally incoherent.

There are significant implications for acknowledging the role of racially polarized voting during Reconstruction. This historical insight moves vote-dilution claims—and their predicate finding of racially polarized voting—far closer to the heart of the Reconstruction Amendments and undermines the Court’s hostility to race-based redistricting. It is powerful evidence that Congress is well within its enforcement authority to remedy and deter dilutive measures that exploit racially polarized voting. Finally, reconstructing racially polarized voting helps re-orient voting rights doctrine toward a Fifteenth Amendment framework.

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“Trump, RNC announce $10 million plan to battle Dems on voting lawsuits”

Politico:

President Donald Trump’s reelection campaign and the Republican National Committee are pumping more than $10 million into a legal campaign challenging Democratic voting-related lawsuits and building a massive Election Day operation.

The multi-million-dollar effort pits the two parties against each other on the issue of voting rights, with Democrats contending that they’re trying to make it easier for more people to cast ballots — and Republicans arguing that they must guard against potential fraud.

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Bad News from Michigan: “GOP leader nixes bill to process influx of absentee ballots”

AP:

 A top Republican lawmaker on Wednesday came out in opposition to legislation that would ease Michigan election clerks’ ability to process an expected influx of absentee ballots, saying it would set a “dangerous precedent.”

Local officials want legislators to let them start opening return envelopes for absentee ballots the day before Election Day. The actual ballots would still stay inside secrecy envelopes until counting on Election Day.

As of last week, the number of absentee ballot applications was up by more than 60% for the March 10 presidential primary compared to 2016 following voters’ passage of a 2018 ballot initiative that allows people to vote absentee for any reason, according to Democratic Secretary of State Jocelyn Benson’s office. While the bill was not expected to be approved in time for that contest, Senate Majority Leader Mike Shirkey’s stance makes it unlikely that the proposed change will be enacted before the November presidential election.

Shirkey said he understands clerks’ concerns, but he wants to see how the current process works.

Adam Ambrogi:

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“Caucus chaos again? Experts fear vote-counting problems in Nevada”

NBC News:

A new early-voting system, high turnout and questions about a never-before-used digital tool being used to process results could threaten the success of the Nevada Democratic caucuses on Saturday, election experts told NBC News.

“I don’t see how any technologist or any party official or any political scientist can promise that this will turn out OK,” said Mark Lindeman, the director of science and technology policy for Verified Voting, a nonpartisan nonprofit group that advocates for election accuracy and transparency.

“There are too many tools and procedures that are being rolled out, some at the last minute,” he continued. “And my impression is that the people on the ground who are charged with implementing these procedures and using these tools are not confident they can do it.”…

The Nevada Democratic Party said it will be using a digital tool they are calling a “caucus calculator” to help process the results. According to state party officials, the tool is a Google Forms program that has been pre-loaded with early vote results specific to that precinct. It’s also pre-loaded with formulas that will be used to calculate delegate allocation.

Caucus volunteers — who staff the precincts and run the caucuses — began receiving hands-on training with iPads that contain the tool on Tuesday. The training will continue until Saturday, according to the Nevada Democratic Party.

Party officials have repeatedly said that nothing used during the Iowa caucuses — including the smartphone app that caused a significant delay in reporting results due to a “coding issue” — will be used during the Nevada caucuses. Officials also said they had independent security experts test the process, but could not say what the testing looked like.

If the iPads fail for any reason, the volunteers will use paper backups.

“I think we have reason to be worried,” said Rick Hasen, a professor of law and political science at the University of California-Irvine and the editor of Election Law Blog. “As was the case in Iowa, you have the party doing multiple new things at once. Here, one is new technology, and two is new rules, with the early voting.”

“It makes me queasy,” he added, calling the system “incredibly complex.”

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“What happens during a contested Democratic National Convention?”

Joshua Spivak:

Iowa and New Hampshire have voted, but the Democratic field has not appreciably thinned. With no candidate even gaining 30 percent in the first two states, political forecasters have noted that the odds are greatly increasing that no one will have a majority heading into the Democratic convention in Milwaukee this summer. While discussion of a brokered convention comes up every four years, the parties have done little to plan for what one would actually look like. Thanks to changes in the process, a contested fight could be vastly more complicated than in the past.

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Political Brands by Prof. Torres-Spelliscy (Post 4 of 4)

The following is the last of four guest posts by Prof. Ciara Torres-Spelliscy, writing about her new book, Political Brands.

Professor Hasen offered me the opportunity to excerpt my new book Political Brands on ELB. My publisher Edward Elgar Publishing gave me permission to excerpt the books introductory chapter “Branding Itself.” These excerpts have been edited for continuity.

The results of the 2016 presidential election motivated me to write Political Brands. How, I wondered, could America have elected a brand as president?  The other occurrence that motivated me to write this book is a sense that Americans are suffering from “truth decay.”  To me, electing a brand president and the decay of truth are intertwined, because the more that voters rely on flashy branding to dictate who is electable, the more they are likely to fall for a slick, media-savvy candidate over a competent and truthful one.

I am a campaign finance lawyer by training. And one of the drivers of the high price of political campaigns is the exorbitant cost of advertising. What first got me interested in branding was a statement from Senator Russ Feingold, who warned in 2011 that “We’re going to have Republican and Democrat toothpaste.”  His quote inspired me to look at commercial branding, political advertising and how these two spheres intersect.  And that was all before Trump was elected president.

The criminal and congressional investigations into Trump’s election in 2016 have provided a treasure trove of information for a researcher like me. In a typical election, political ads that were placed on Facebook for a millisecond could be lost to history. But now some of those ads, because they are suspected to be part of a foreign attack on the integrity of our elections, are part of a permanent and public Congressional record. Like the Congressional investigation into Watergate, which gave the public a rare peek behind the curtain into the 1972 election, the investigations into the 2016 election provide a chance for a deeper dive on how modern elections are transforming.

A final reason that I wanted to write this book is to show the artifice of political branding. Typically, the people using political branding techniques are just trying to manipulate the public. When President Trump calls his Mar-a-Lago golf club in Florida the “Winter White House,” that is branding and not original branding either. President Nixon (1969-74) called his Florida home the “Winter White House.”   When Special Counsel Robert S. Mueller III’s investigation into the 2016 election is called a “witch hunt” by Presidential Advisor Kellyanne Conway, that is branding.  Again, it’s not original branding. This phrase harkens back to the dark days of the Salem witch trials—the original American “witch hunt.”  When White House Chief Strategist Steve Bannon said, “drain the swamp,” about limiting the power of Washington insiders, that was branding. Again, it wasn’t original.  Senator Richard Neuberger used the phrase “drain the swamp” in a piece in the New York Times urging the adoption of public financing for federal elections back in 1956.   The original Mother Jones (the woman whom the magazine is named after) also said “drain the swamp” in 1913.  Even Speaker of the House Nancy Pelosi in 2006 called for Democrats to “drain the swamp.” 

But when working for a firm called Cambridge Analytica, Steve Bannon tested the phrase “drain the swamp” years before it was used in the 2016 election campaign by candidate Donald Trump.  Clearly, what Mr. Bannon was doing was brand testing, and “drain the swamp” hit the right chord for his target market.  My hope is that perhaps when Americans see that “Winter White House,” “witch hunt” and “drain the swamp” are all just basic branding trying to sell something, they can be less gullible about falling for messages designed to tug at our emotions and obfuscate the truth. 

“Branding” has been called “a process of manufacturing meaning.”  I don’t disagree, but that is precisely why branding’s power needs to be interrogated. Manufacturing meaning is a scary power in the wrong hands. During the Third Reich in Germany, propagandist Joseph Goebbels “manufactured meaning” too. It led to genocide and a World War.

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11th Circuit Unanimously Affirms District Court Preliminary Injunction Blocking Enforcement of Florida Legislature Law Requiring Ex-Felons to Pay Fees and Fines Before Reenfranchisement

You can find the 78-page opinion at this link. It begins:

On November 6, 2018, Florida voters approved Amendment 4, a state constitutional amendment that automatically restored voting rights to ex-felon who had completed all of the terms of their sentences.

Contemporary media reports suggested that as many as 1.4 million felons could be eligible for reenfranchisement under the law. Accounts differed as to whether this figure made Amendment 4 the single largest act of enfranchisement since the Nineteenth Amendment in 1920, the Voting Rights Act in 1965, or the Twenty-Sixth Amendment in 1971. By any measure, Amendment 4’s enfranchisement was historic.

Amendment 4 provided that a felon’s “voting rights shall be restored upon completion of all terms of sentence including parole or probation.” Following its passage, the Florida legislature passed Senate Bill 7066, which implemented the Amendment and interpreted its language to require payment of all fines, fees and restitution imposed as part of the sentence (collectively, “legal financial obligations” or “LFOs”). The Florida Supreme Court later agreed with the legislature’s interpretation of the Amendment—during the pendency of this appeal, it held that the plain text of Amendment 4 requires payment of all LFOs as a precondition of re-enfranchisement.

Following the passage of SB 7066, the seventeen plaintiffs in this case brought suit, challenging the constitutionality of the LFO requirement. Each plaintiff is a felon who has alleged that he or she would be eligible for reenfranchisement under Amendment 4 but for non-payment of outstanding LFOs. Each plaintiff has also alleged that he or she is indigent and, therefore, genuinely unable to pay those obligations.


The cases were consolidated in the United States District Court for the
Northern District of Florida, which then issued a preliminary injunction requiring the State to allow the named plaintiffs to register and vote if they are able to show that they are genuinely unable to pay their LFOs and would otherwise be eligible to vote under Amendment 4. From this order the State timely appealed to this Court.


Because the LFO requirement punishes those who cannot pay more harshly than those who can—and does so by continuing to deny them access to the ballot box—Supreme Court precedent leads us to apply heightened scrutiny in asking whether the requirement violates the Equal Protection Clause of the Fourteenth Amendment as applied to these plaintiffs. When measured against this standard, we hold that it does and affirm the preliminary injunction entered by the district court.

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“Expect absentee ballot surge to delay Michigan election results”

Detroit News:

Michigan residents should be prepared for delayed results in next month’s presidential primaries — but the wait will be shorter than what’s anticipated in November’s general election, when results in some big cities aren’t expected until the following day, experts say. 

An increase in absentee voters and the time it takes to count their votes on Election Day likely will delay official results, even though pending legislation seeks to shorten the process. 

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Political Brands by Prof. Torres-Spelliscy (Post 3 of 4)

The following is the third of four guest posts by Prof. Ciara Torres-Spelliscy, writing about her new book, Political Brands.

Professor Hasen offered me the opportunity to excerpt my new book Political Brands on ELB. My publisher Edward Elgar Publishing gave me permission to excerpt the books introductory chapter “Branding Itself.” These excerpts have been edited for continuity.

The largest publicly traded companies are sometimes richer than nations.  They are big, global and imposing, but they have two Achilles’ heels related to their brands: rejection by their investors and shunning by their customers.  If the brand is damaged, the company is likely to suffer.  Corporations typically want to add to the value of their brands, not detract from it.  The goodwill associated with a brand may well be a company’s greatest asset. 

Indeed, intellectual property litigation is often launched by firms to ensure that no one is using a copyrighted brand logo, trade dress or trademark in a way that would tarnish or harm a brand.  As Justice Frankfurter once held: “The protection of trade-marks is the law’s recognition of the psychological function of symbols.”  And the value of these symbols can reach the billions. Forbes estimated the value of Nike’s swoosh at $26 billion;  though that pales in comparison to Apple’s “apple with a missing bite” brand, which Forbes valued at $170 billion.

Typically, building up positive connotations for a brand is done through advertising using standard puffery.   Old standbys for advertisers are the assertion (true or not) that if the customer buys this product, she will be more powerful, rich, intelligent, sexy, envied or successful.   But the lies to sell products can get out of hand, as Vance Packard complained in his book The Waste Makers: “Millions of consumers are manipulated, razzle-dazzled, indoctrinated, mood-conditioned, and flimflammed.” 

Jingles to sell products are often “earworms” that get stuck in viewers’ heads. They can be so insidious that even if viewers hate the product or the company behind it, the ad copy is stuck in their minds. As Drew Westen notes, “[w]hen even people who don’t like your product are humming your jingle, you know you’ve got them where it counts: in their [neural] networks.”  Likewise, ad man Nigel Hollis once wrote:

engaging and memorable ads slip ideas past our defenses and seed memories that influence our behavior. You may not think advertising influences you. But marketers do. And in addition to millions of dollars, they have something else most people don’t have: Access to data that proves their point.

As the data crunchers over at Nielsen have found, “[p]ractice (repetition) indeed makes perfect—and can help create durable memories.”   One of the oddities of advertising brands is that some customers associate repetitive ads with higher-quality products. Objectively, this is somewhat absurd, since a heavily advertised item could be poorly constructed, carcinogenic or addictive. But nonetheless, this is a measurable phenomenon:

Repetition of an ad may signal to consumers that the brand or product is a good buy, or a quality product. This is sometimes referred to as signaling theory. In 1975, University of Wyoming researchers Anthony McGann and Raymond Marquardt found that ads with high rates of repetition tended to also be rated as high quality in Consumer Reports

And even more disturbingly, the more an ad is repeated, the more viewers will believe it (even if the claim that is being repeated is not true). “Studies suggest that repeated statements are perceived as more truthful than statements made less frequently, ‘presumably because repetition imbues the statement with familiarity.’ In simple terms: frequency breeds familiarity, and familiarity breed trust.”

These commercial branding techniques can be used in political ads as well.

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Final Slate “Election Meltdown” Podcast Recording Live in Washington DC Wednesday

If you are in Washington DC, come on out and join us (tickets required):

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“Watchdog Says Buttigieg Campaign Exploited Super PAC Loophole”

NYT:

To most supporters of Pete Buttigieg, the tweet probably seemed innocuous: A senior adviser to Mr. Buttigieg, Michael Halle, simply noted that the candidate’s military record would be an asset in Nevada.

But critics say Mr. Halle’s tweet also served as a Bat Signal to VoteVets, the super PAC supporting Mr. Buttigieg’s candidacy, with an unmistakable directive: Run ads in Nevada on this issue….

But a campaign finance watchdog group filed a complaint on Tuesday, alleging that Mr. Halle’s tweet ran afoul of federal regulations. Though the F.E.C. allows super PACs to use “publicly available” information to create ads, the complaint said the agency did not allow ads to be created and distributed at the “request or suggestion” of a candidate or his agent.

“It was the Buttigieg campaign’s obvious and detailed request for super PAC support here that crossed the legal line,” said Brendan Fischer, the director of the federal reform program at the Campaign Legal Center, the watchdog group that filed the complaint.

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Election Meltdown Dep’t: Electronic Voting Glitch Halts Elections in Dominican Republic

Reuters:

Dominican Republic’s nationwide municipal elections were suspended only four hours after voting began on Sunday due to a glitch in the electronic voting system, officials said.

More than 7.4 million voters were due to vote to elect 3,849 positions in 158 municipalities across the Caribbean nation. The failure of the system is likely to raise concerns ahead of the May 17 presidential elections.

Julio Cesar Castanos, president of Dominican Republic’s electoral body, said nearly half of the electronic devices did not work properly and many virtual ballot papers did not load, leaving citizens unable to cast their votes.

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“NC Court of Appeals throws out voter photo ID for now, says law likely passed with discriminatory intent”

NC Policy Watch:

A three-judge North Carolina Court of Appeals panel has ruled unanimously that the state’s voter photo ID law will not stand pending a trial on the merits of the underlying lawsuit.

The 45-page ruling, written by Judge Toby Hampson with Judges John Arrowood and Allegra Collins concurring, states that the plaintiffs demonstrated they would likely succeed on their claims that the law, Senate Bill 824, is discriminatory and will cause irreparable harm. It also states that since the federal courts have already prevented the law from going into effect for the upcoming primary election, the decision to continue an injunction would prevent further voter confusion.

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“The new thing for California politicians? Sweet charity”

Lauren Rosenhall for CalMatters:

In California, their numbers, as well as their donations, are surging. According to a CalMatters analysis, the number of nonprofits affiliated with California legislators or caucuses grew from at least three in 2010 to at least 12 last year, with total revenue of about $2.9 million. 

Much of the money has come from corporations and unions with business before the Legislature, including oil, tobacco and other lobbies whose political contributions are officially or unofficially shunned by the member’s party. The upshot, experts say, is a monetary backchannel that, while legal and even sometimes beneficial, has also become an increasingly common way for politicians to raise and spend money outside the limits even of California’s tough regulations. 

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“Kansas elections chief’s security plan causes local unease”

AP:

Kansas’ elections chief is pushing to make the state’s central voter registration database more secure by changing how counties tap into it, but some officials are nervous about what they see as a big project in a busy election year.

Secretary of State Scott Schwab has told county election officials that he wants them to use dedicated tablets, laptops or computers not linked to their counties’ networks to access the state’s voter registration database. He says Kansas is getting $8 million in federal election security funds that could be used to cover the costs.

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“Quasi Campaign Finance”

I just posted this new article, which is forthcoming in the Duke Law Journal. It tackles what I call “quasi campaign finance” — money spent on non-electoral politics that nevertheless relies on an electoral connection to be effective. The abstract is below:

Say you’re wealthy and want to influence American politics. How would you do it? Conventional campaign finance—giving or spending money to sway elections—is one option. Lobbying is another. This Article identifies and explores a third possibility: quasi campaign finance, or spending money on non-electoral communications with voters that nevertheless rely on an electoral mechanism to be effective. Little is currently known about quasi campaign finance because no law requires its disclosure. But its use by America’s richest and politically savviest individuals—the Koch brothers, Michael Bloomberg, and the like—appears to be rising. It also seems to skew policy outcomes in the spenders’ preferred direction.

After introducing quasi campaign finance, the Article considers its legal status. Is it like ordinary campaign finance, in which case it could be regulated fairly extensively? Or is it like garden-variety political speech, rendering it presumptively unregulable? One argument for pairing quasi and regular campaign finance is that they share several features—who bankrolls them, the tactics they pay for, the reasons they work—and so may serve as substitutes. Another rationale for conflation is that they may both cause the same democratic injuries: corruption, the distortion of public opinion, and the misalignment of public policy. Pitted against these points is the slippery-slope objection: If quasi campaign finance may constitutionally be curbed, what political speech may not be?

Lastly, the Article suggests how quasi campaign finance should (assuming it actually may) be regulated. Limits on contributions and expenditures are unwise and probably unadministrable. Disclosure, though, is a necessity. The public should know who is trying to persuade it (and how). Even more promising is the public subsidization of quasi campaign finance. If every voter received a voucher for this purpose, then public funds might crowd out private capital, thus alleviating its harmful effects.

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Political Brands by Prof. Torres-Spelliscy (Post 2 of 4)

The following is the second of four guest posts by Prof. Ciara Torres-Spelliscy, writing about her new book, Political Brands.

Professor Hasen offered me the opportunity to excerpt my new book Political Brands on ELB. My publisher Edward Elgar Publishing gave me permission to excerpt the books introductory chapter “Branding Itself.” These excerpts have been edited for continuity.

What do survivors of a mass shooting in Florida, Russian intelligence officers, Coca-Cola and the president of the United States all have in common? They all try to influence public opinion using branding, even if what is getting branded is the truth, a lie, a myth or a conspiracy. 

“Branding” is the process of purposefully repeating a word, concept or logo until it gets stuck in the minds of the public.  Commercial branding is ubiquitous.  Brands are so omnipresent in our lives that they sometimes slip into genericide. Linguists Julie Sedivy and Greg Carlson in Sold on Language, note how brands have become shorthand for objects in our daily lives:

If you stroll across your linoleum floor over to your formica countertop, check on the stew in the crock-pot, pick up the spilled kitty litter in the corner with a kleenex, pour a bowl of granola, and open your freezer to take out a popsicle before proposing a game of after-dinner ping pong, you are contributing to the genericide of these brand names.

Even as brands seep into our language, they are vulnerable to picking up negative associations and generating revulsion. As Professor Tamara Piety notes in Brandishing the First Amendment:

It is possible to create a brand out of whole cloth. However, because brand value is so dependent on imagery built by communication efforts, it is, to some extent, always susceptible to sudden shifts in public perceptions. Such shifts may include total collapse of all brand value. 

Or as David D’Alessandro, president of John Hancock Mutual Life Insurance, once quipped: “It can take 100 years to build up a good brand and 30 days to knock it down.”  In the Twitter age, death of a brand can happen even quicker.

The word “brand” comes from the Old English word “brond,” meaning “fire.” Branding’s historical roots derive from farmers using a red-hot iron to sear an image, like the initials of the owner or a family crest, into the flesh of livestock.  This type of “branding” was a way of telling Farmer Joe’s cows from Farmer Steve’s cows. According to the Smithsonian, branding dates back to at least 2700 BC, where there is evidence of livestock branding depicted in ancient Egyptian hieroglyphics. 

The meaning of “branding” has certainly evolved beyond marking livestock with hot irons. According to Mustafa Kurtuldu, “[t]he transition from ‘This belongs to me, so leave it. . . ’ to ‘This was made by me, so buy it’ started to evolve in the 1800’s.”  Commercial branding as Americans know the practice today took off as corporations tried to market what had been previously undistinguishable dry goods, like fungible piles of oats or beans.  The need for branding is most acute when the market is flooded with nearly indistinguishable and fungible goods. As Forbes once explained of Coke:

In the late 1880s… [b]efore Coca-Cola could get a customer to reach for a Coke, it needed to be sure the customer could distinguish a Coke from all the other fizzy caramel-colored beverages out there. . . A Coke is a fizzy caramel-colored soda concocted by those folks in Atlanta. 

Coca-Cola was started as patent medicine that was advertised as “an ideal nerve tonic,” which contained wine and cocaine. After a local temperance law passed, later formulations of Coke changed to sugar and cocaine. Then finally Coca-Cola went with its modern formula of just sugar and caffeine.  In the 1800s, patent medicines were heavily advertised, including strange tinctures which claimed to be miracle cures for exhaustion and headaches. Often the main active ingredient was cocaine, just like the original Coca-Cola.  But the corporations making the patent medicines wanted consumers to buy their cocaine, not the other guy’s cocaine.

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“How can the United States fix its democracy? Look to the north.”

In this Washington Post piece on how the Canadian system of elections is structured so differently from ours, I particularly enjoyed this line:

Contrary to the impulse of the uber-democrat who believes that democracy means chaining each element of the state to an elected office, the Canadian system recognizes that the further politicians are from the process of determining electoral boundaries, the more fair and legitimate elections will be.

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Political Brands by Torres-Spelliscy (Post 1 of 4)

The following is the first of four guest posts by Prof. Ciara Torres-Spelliscy, writing about her new book, Political Brands.

Professor Hasen offered me the opportunity to excerpt my new book Political Brands on ELB. My publisher Edward Elgar Publishing gave me permission to excerpt the books introductory chapter “Branding Itself.” These excerpts have been edited for continuity.

The language of marketing has infected political discourse. Recall when President George W. Bush’s Chief of Staff Andrew Card once said, “You don’t introduce new products in August,” explaining why the administration didn’t try to “sell” the second Gulf War to the American public.  Or as pollster Celinda Lake explained, “whether you’re Pepsi or Obama you have to run a campaign to get your brand out.”

Political branding comes from the government and from political actors. Branding from the government is propaganda when it feeds the public a particular view that is deeply misleading. Though interestingly, even the word “propaganda” started with different connotations when it was coined by the Vatican in 1622. The original idea from Pope Gregory XV was to propagate the Christian faith through “propaganda.”  Only after the First World War, did the word “propaganda” turn into the ugly manipulative mess that it is today. 

Political campaigns are one place where political branding attempts to define candidates, policies, even the state of the nation. Incumbents will try to brand the economy as outstanding and brand themselves as the cause of the nation’s success. A key to success for many challengers vying for high office is the ability to convince disenchanted voters that the candidate can save them. This might explain the election of Franklin D. Roosevelt, who promised a nation of “forgotten men” going through its worst financial Depression a “New Deal”—one of the all-time great political brands in history. 

In candidate campaigns, which often rely on broadcast ads to reach large and dispersed electorates, the first casualty is often the truth. Depressingly, facts frequently have nothing to do with who is electable. As Joe McGinniss summed up, “Politics, in a sense, has always been a con game.”

Often what political ads play on is not the argument that we should support a particular new candidate, but rather that we (the viewer) already support the candidate because the candidate is on our team.  As cognitive scientists showed “once a group is marked as competitive, Schadenfreude [taking pleasure in the misfortune of others] and Glückschmerz [sorrow felt at the good fortune of others] follow: no learning is required.” 

Branding played a crucial role in the 2016 election. As Trump’s ex-personal lawyer, Michael Cohen, testified:

Donald Trump is a man who ran for office to make his brand great, not to make our country great. He had no desire or intention to lead this nation – only to market himself and to build his wealth and power. Mr. Trump would often say, this campaign was going to be the “greatest infomercial in political history.” … The campaign – for him – was always a marketing opportunity.

Branding has surely taken center stage with the Trump Presidency. As a master brander, he knows that repetition of catchphrases or an image is the way to hammer a point home. He’s not the only one who can deploy this technique. The day after Trump was inaugurated, a Women’s March in Washington, D.C. to protest him attracted more attendees than his inauguration. One way the two crowds could be distinguished at a distance was that many in the Trump crowd wore red “Make America Great Again” hats and many in the Women’s March crowd wore distinctive knitted pink hats.  Thus, even the resistance is branded.

Branding techniques do not have to be used for an iniquitous telos. Branding techniques were used by Sesame Street to teach generations of children to read. And there is some discussion of positive uses of branding in this book, like those deployed by survivors of the Parkland Massacre. But most of the book is focused on when branding is used to manipulate and abuse the public, often for base political ends.

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“‘A complete disaster’: Fears grow over Nevada caucus malfunction; Volunteers complain of poor training for a vote-reporting system that was adopted on the fly.”

Politico:

Anxiety is rising over the possibility of another tech-induced meltdown at the Nevada Democratic caucuses on Saturday.

In interviews, three caucus volunteers described serious concerns about rushed preparations for the Feb. 22 election, including insufficient training for a newly-adopted electronic vote-tally system and confusing instructions on how to administer the caucuses. There are also unanswered questions about the security of Internet connections at some 2,000 precinct sites that will transmit results to a central “war room” set up by the Nevada Democratic Party.

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“Facebook Says Political Candidates Can Use Sponsored Memes”

NYT:

Facebook announced on Friday that it would allow political campaigns and candidates to pay creators for sponsored content on Instagram and Facebook, so long as the posts follow the company’s disclosure guidelines.

Each piece of sponsored political content must use Facebook’s branded content tool, which states at the top of the post that the creator was paid for it and by whom.

The announcement followed the news that Michael Bloomberg’s campaign had contracted a group of meme creators to post advertisements for his candidacy. After those posts appeared on Instagram, which is owned by Facebook, several campaign representatives reached out to Facebook to clarify its stance on how politicians could work with influencers to increase their reach.

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“‘Something has to be done’: Trump’s quest to rewrite history of the Russia probe”

WaPo:

The U.S. intelligence community long ago produced evidence of Russia’s illegal interference in the 2016 presidential election to try to boost Donald Trump’s candidacy. Then the special counsel investigating the matter detailed myriad ways President Trump sought to stymie the probe. And then Robert S. Mueller III testified to Congress about Trump’s conduct — and warned of Russia’s continued interest in thwarting U.S. elections.

But it is Trump who is trying to have the last word.

Seven months after Mueller’s marathon testimony brought finality to the Russia investigation, Trump is actively seeking to rewrite the narrative that had been meticulously documented by federal law enforcement and intelligence officials, both for immediate political gain and for history.

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“Trump Is Already Making Stuff Up About Voter Fraud”

Frank Wilkinson for Bloomberg View:

While candidates jostle for advantage in the Democratic presidential primary, and the news media play the odds, President Donald Trump already knows the identity of his opponent. Indeed, his campaign, with the full support of the Republican Party, is already waging a vigorous crusade to destroy his opposition. No, it’s not Joe Biden, who inspired Trump’s shakedown of Ukraine. Trump’s gunning for bigger game: democracy itself.

The Democratic Party is not prepared for this war. The news media is still struggling, and often failing, to adapt to demagogy. And the electorate, at least the non-MAGA majority invested in preserving rule of law, has limited tools for fighting back. As election law expert Richard Hasen notes in “Election Meltdown,” his alarming new book about the threats to U.S. elections, mitigating risk is “especially challenging when one of the greatest risks to the integrity of the process comes from the sitting president of the United States.”

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