“George Floyd protests created a surge in voter registrations, groups say”


Voter registrations, volunteer activity and donations for groups linked to Democratic causes are surging in the midst of protests following the death of George Floyd, according to voting advocacy groups.

This surge in registrations could end up being one of the factors that helps tip the election between apparent Democratic nominee Joe Biden and President Donald Trump. The efforts are by groups including Latino voter registration organizations, Rock the Vote and one co-chaired by former first lady Michelle Obama.

Latino voter registration groups in recent weeks have noticed an uptick in their communities mobilization to vote, particularly from younger voters. The leaders of these organizations said that many are registering after nationwide outrage directed at police brutality and the spread of the coronavirus pandemic, which has left over 100,000 dead and tens of millions jobless in the United States. Unemployment rates for Hispanic and black workers remained high at 17.6% and 16.8%, respectively, even after the nation added 2.5 million jobs last month.


Very Bad Sign for November: “Election results in Philly are going to take even longer than expected: Half the votes still haven’t been counted”

This is exactly what I’ve been worried about:

Philadelphia election officials stopped counting mail ballots Thursday and may not start again for days, warning that the outcomes of a number of races in Tuesday’s primary won’t be known for several weeks and that the city may miss a legal deadline for certifying the results.

The delay is due to the large number of mail ballots voters requested in the last week before the deadline, Deputy City Commissioner Nick Custodio said. He said the commissioners, who run Philadelphia elections, stopped counting them so workers can check poll books to ensure nobody voted twice.

Almost half of the votes cast Tuesday in Pennsylvania’s largest city will remain uncounted until next week.

“The outcomes of some races will not be known for weeks, and the candidates and campaigns should be prepared for that,” Custodio said Friday during a meeting of the city commissioners.

State law requires all votes be counted and certified to the state within 20 days of an election. That might not happen, Custodio said. He said at the meeting that the commissioners would look for ways to improve the process over the next several months “so that we are able to timely certify the November general election.”


“Is Voting Enough?”

Latest episode of Franita and Foley podcast:

In response to the Black Lives Matter protests, some are calling for people of color to “just vote.” But in a country with a history of voter suppression and disenfranchisement, is voting enough? Franita Tolson (USC Gould School of Law) responds to the hypocrisy of this suggestion in her American Constitution Society blog post, “Democracy as a Slogan.” In this episode, she and Ned Foley (OSU Moritz College of Law) discuss racial equality as an ongoing commitment, using the lessons from history that Tolson touches on in her essay, which can be read at bit.ly/DemSlogan.


Ohio House Passes Bill That Would Make It Harder to Vote During the Pandemic

Dayton Daily News:

The Ohio House voted 61-34 along party lines Thursday in favor of an elections bill that voting rights groups say will make casting ballots during a pandemic more difficult.

House Bill 680 would block the Ohio secretary of state from prepaying return postage on applications for absentee ballots or on the ballots themselves. It calls for shortening the time allowed for requesting an absentee ballot to seven days before Election Day.

It would also block public officials from canceling or delaying an election. Gov. Mike DeWine and Ohio Department of Health Director Amy Acton used a public health order to close polling places for the March 17 presidential primary to prevent the spread of the coronavirus.

The fast-tracked legislation, first introduced May 27, encountered opposition from groups such as the NAACP, League of Women Voters of Ohio, Common Cause Ohio, AARP Ohio, ACLU of Ohio, Ohio Council of Churches, and others. The bill moves to the Senate now for consideration there.


“The Cybersecurity 202: Attempted hacks of Trump and Biden campaigns reveal a race to disrupt the 2020 general election”


It’s official: The race to hack the 2020 general election is in full swing. 

Iran tried to hack into Gmail accounts used by President Trump’s reelection campaign staff, the leader of Google’s threat-hunting team revealed in a tweet. China, meanwhile, tried to hack staff for former vice president Joe Biden, the presumptive Democratic presidential nominee, Shane Huntley said. 

The hackers didn’t successfully breach those accounts. But these nation state-backed hacking campaigns are likely to be the just the beginning of a general election campaign that will be ripe for disruption by U.S. adversaries. 


“California D.A.s Call for Ban on Police Union Money and Endorsements in Prosecutorial Elections”

Eliahyu Kamisher reports for The Appeal:

But a ban on direct campaign contributions will have relatively little effect on the influence of police unions, said Robert Stern, a former attorney who has worked extensively on California campaign finance reform. He noted that the majority of their money is funneled through political action committees, or PACs, that are not subject to contribution limits.

The Los Angeles police union (LAPPL), through two PACs, spent $1 million toward defeating Gascón, who is opposing incumbent Jackie Lacey in a November runoff election for district attorney. Law enforcement groups also spent over $650,000 to oppose Boudin’s contentious run for San Francisco’s top prosecutor role. 

On Monday, the LAPPL focused its anger on Boudin and Gascón, accusing them in a statement of “exploiting the tragic and horrific death of George Floyd.” The union said there is no similar proposal to eliminate contributions from other special interest groups, including defense and civil attorneys. …

Stern said the bar is unlikely to regulate union spending or political support and a move to do so could run afoul of the First Amendment if taken to court.  

“It’s more of moral suasion than it would be law, I just don’t see how the unions would be stopped from doing it,” said Stern, who served as the first general counsel of California’s Fair Political Practices Commission.


Breaking: Tennessee State Court Holds that, Given COVID-19, State Constitution Requires Offering Any Voter The Opportunity to Vote by Absentee Ballot in Upcoming Election

You can find the opinion here. We will see if the state appeals.

One interesting aspect of the opinion is the discussion of the supposed antifraud benefits of requiring in person voting: “The court notes that voters will be able to wear face masks when voting. These conditions obscure identity and undercut the defense that in-person voting during the pandemic poses less of a threat of voter fraud.”


“Will We Actually Get to Vote in November?”

Sue Halpern in The New Yorker:

A few weeks ago, when I asked the legal scholar Rick Hasen about a scenario, then circulating, that laid out a “legal” way for the Trump Administration to bypass elections and keep Trump in power, he said it would lead to rioting in the streets. That was before there was rioting in the streets, which has given the Trump Administration an opportunity to mobilize U.S. soldiers to police U.S. citizens, and local governments to deploy militarized police forces that have shown little respect for constitutional rights as they fire rubber bullets, deploy tear gas, and charge and beat peaceful protesters. The spectre of violence in the streets, which horrifies most Americans, appears to energize our self-declared “law-and-order President.” Certainly, it gives cover for greater surveillance and the thwarting of dissent. On Tuesday, as voters went to the polls in eight states and the District of Columbia, with many citizens under curfew orders, we saw a whole new way to keep citizens from voting.


“Senate panel approves legislation requiring campaigns to report foreign election help”


The Senate Intelligence Committee quietly approved on Wednesday a measure that would require presidential campaigns to report offers of foreign election influence to federal authorities, a move taken in response to Russian election interference in 2016 and one that could draw the attention of President Donald Trump, committee sources say.

Senate Republicans, however, are preparing to remove the provision from the bill when it heads to the Senate floor.The committee adopted the measure behind closed doors in a classified setting, adding it to the Intelligence Authorization Act, a bill setting policy for the intelligence community. The amendment was offered by Sen. Mark Warner of Virginia, the committee’s top Democrat and the author of the standalone legislation, and GOP Sen. Susan Collins of Maine. It passed 8-7, with Collins joining the panel’s seven Democrats.


Breaking: 5th Circuit Stays Lower Court Order on Challenge to Texas Absentee Voting Rules During a Pandemic, Creating Some Bad Law Along the Way

You can read the court’s opinion by Judge Jerry Smith, along with separate concurrences by Judge Ho and Costa at this link.

The result is no surprise; see my May 19 post, Breaking: Federal District Court, in Sweeping Opinion, Holds That Texas Must Allow Voters Who Wish to Vote by Mail to Do So In Light of COVID, But The Opinion is Vulnerable to Reversal by 5th Circuit.

Judge Smith’s opinion simply excoriates the sloppy and poorly written district court decision; it was the most unhelpful way for the district court to have written a decision to be reviewed by a much more conservative 5th circuit.

Judge Smith’s opinion helpfully rejects the argument, which was advanced by a federal district court in Georgia, that these cases raise nonjusticiable political questions. But on the merits, the opinion rejects a challenge to Texas’s absentee voting rules, which allow voters over 65 to vote by mail without an excuse but everyone else must present an excuse (and lack of immunity to Covid-19 does not count under Texas law) to do so. The court held the equal protection challenge was rejected by the Supreme Court in the McDonald case, which rejected a challenge to failing to give pre-trial detainees in Illinois the right to cast an absentee ballot. (I explain why I do not believe McDonald controls in the Covid situation in footnote 171 of this draft.) The court then takes McDonald and applies it directly to reject a 26th amendment age discrimination argument, despite the fact that the 26th amendment was not an issue in that case. The court drops a footnote recognizing that there is a large dispute over the full scope of the amendment.

Judge Ho joined the majority opinion, but spent some pages trying to explain the supposed great risk of voter fraud with mail-in ballots.

Judge Costa concurred only in the result, noting that the district court did not wait for the state courts to first interpret the meaning of Texas’s absentee ballot law. Judge Costa would have said the district court should have abstained, and he would have remanded the case back for reconsideration now that the Texas courts have interpreted the statute in light of Covid. He would not have reached the merits.


“D.C. Lets Voters Submit Ballots by Email After Mail Problems; Some states that are preparing for voting by mail to be more popular in the November election than in past years had hiccups on Tuesday”


The Washington, D.C., Board of Elections, inundated with complaints from voters who said they didn’t receive absentee ballots in the mail, created an unusual workaround for Tuesday’s primary: allowing voters to submit ballots by email.

That conflicts with security recommendations typically given by experts, but one local official said she thought it was worth the risk given the unusual circumstances. “I guess there are Russian hackers that can do anything, but I doubt they’re really concerned with the Ward 2 D.C. election,” said Councilmember Elissa Silverman.

Washington, D.C., and seven states holding presidential primaries on Tuesday had promoted voting by mail because of concerns about in-person voting during the coronavirus pandemic. Ms. Silverman, who wasn’t on the ballot, said hundreds of voters asked her office for help after they didn’t receive absentee ballots they requested, and she called for an investigation into what happened.

Rachel Coll, a spokeswoman for the elections board, said late Tuesday that it wasn’t clear why some absentee ballots weren’t received and how many voters were affected. She called the decision to allow ballots to be submitted over email a “last resort” available to those who tried unsuccessfully to get absentee ballots.

The elections board said Wednesday that it had received and counted approximately 50,000 absentee ballots, out of around 91,000 that district voters had requested. The board said it would count absentee ballots through June 12 as long as they were postmarked by June 2. In-person voters totaled 33,194, including the early voting period and on Election Day.


“Low rates of fraud in vote-by-mail states show the benefits outweigh the risks”


Heritage makes their full database available, so we were able to look into the cases of voter fraud that they claim represent rampant illegal activity. We began with the five states that have already used universal vote-by-mail systems and thus have one or more elections under their belt. Then we looked at the way Heritage categorizes cases of voter fraud. Most of their categories, such as false voter registration or ballot petition fraud, can occur regardless of whether a state has implemented vote-by-mail. However, we might expect that duplicate voting and fraudulent use of an absentee ballot—both of which typically involve one person voting their own ballot and someone else’s ballot as well—would be easier in vote-by-mail states than in states where the voter would have to physically travel between precincts or from one county to another.

The following table lists the five states that have been using vote-by-mail prior to 2018. We looked at their fraud cases from the Heritage sample to see how many were of a type that vote-by-mail systems might be more vulnerable to and how many votes were affected. Our conclusion, from Heritage’s data: There is surprisingly little voter fraud and not nearly enough to justify blocking vote-by-mail systems in a pandemic….

The above chart refutes the contention that mail-in ballot systems are rife with fraud in several ways. First, note the small number of voter fraud cases overall. Next, note that a subset of those cases involve types of fraud to which mail-in ballot systems would be especially susceptible. Next, look at the time periods covered by these data. In Oregon, the first state to adopt a universal vote-by-mail system, the Heritage researchers had to cover a period of 19 years in order to find 15 cases of voter fraud! Less than one case a year hardly qualifies as rampant voter fraud.

But perhaps the most revealing column is the one listing the number of fraudulent votes attempted by mail. Republicans would have you believe that vote fraud is widespread enough to affect elections. But the fraud uncovered by the Heritage study is inconsequential. What has been uncovered in these five vote-by-mail states is on the individual level and not on an organized level. For instance, Janice Waters of Marysville, Washington, was found guilty of voting a ballot for her son who was a convicted felon and thus not eligible to vote. Jane Kay Balogh, also from Washington, was convicted of registering her dog Duncan to vote at her address and filling out an absentee ballot for him. Waters was sentenced to jail time, later converted to community service; Balogh got a deferred sentence plus community service and had to pay court costs. In Oregon, Terri Louise Kobialka was convicted of filling out a ballot mailed to her apartment in the name of a former roommate. She was fined $500 and ordered to do 120 hours of community service.


“Maryland Congressional Delegation Calling for Comprehensive Review of State’s June 2 Primary Elections”


Congressman Jamie Raskin (MD-08) and Members of the Maryland Congressional Delegation, including Senators Ben Cardin and Chris Van Hollen and Congressmen Steny H. Hoyer, Dutch Ruppersberger, John Sarbanes, Kweisi Mfume, Anthony G. Brown and David Trone (all D-Md.), issued the following statement today after Maryland’s June 2 primary election, held amid the COVID-19 pandemic and nationwide protests against police brutality and inequality:

“The primary election in Maryland on Tuesday was conducted under extraordinary circumstances that required timing changes and significant adjustments to voting methods.  Under this pressure, it is clear there have been a number of breakdowns in the process.

“With the full participation and cooperation of the Maryland State Board of Elections and the Board’s staff, there must be an urgent, thorough and rigorous review of the Maryland primary election to identify problems that occurred, take steps to address them and ensure that as a state we are well-prepared to conduct a safe, free and fair election in November. Policymakers and election administrators at every level of government have a responsibility to join in this effort and do so in a way that bolsters the confidence of Maryland voters and make sure that they are able to cast their vote and have that vote accurately counted.”


Native American Rights Foundation Report: “Obstacles at Every Turn”


In 2017 and 2018, the Native American Voting Rights Coalition—founded by the Native American Rights Fund—held nine public hearings to better understand how Native Americans are systemically and culturally kept from fully exercising their franchise. More than 120 witnesses testified from dozens of tribes across the country.

The final report, Obstacles at Every Turn: Barriers to Political Participation Faced by Native American Voters,  was released June 4, 2020, and provides detailed evidence that Native people face obstacles at every turn in the electoral process: from registering to vote, to casting votes, to having votes counted.

Some of these findings affect non-Natives as well. Many are particular to the Indian Country experience in 2020. Some were put in place specifically to suppress turnout.


“Age Discrimination in Voting at Home Report”

A consortium of scholars and groups has released this report. Here is the summary:

Seven states currently discriminate on the basis of age in their vote-at-home (also known as absentee ballot) systems. Specifically, Texas, South Carolina, Indiana, Tennessee, Mississippi, Louisiana, and Kentucky allow older voters to vote at home for any reason, but younger voters need specific excuses. Missouri may soon join this group of states if the Governor signs a pending bill to modify voting procedures during the COVID-19 pandemic.

In this novel report, a coalition including Equal Citizens, The Andrew Goodman Foundation, UCLA Voting Rights Project, Vote at Home Institute, and Stris & Maher LLP explains why these laws are unconstitutional under the Twenty-Sixth Amendment, which prohibits age discrimination in voting.


Republicans Want Wisconsin Supreme Court (Dominated by Conservatives) Rather than a Federal Court to Draw Redistricting Maps After Census Results are In

Milwaukee Journal-Sentinel:

The legal fight over the next round of redistricting in Wisconsin kicked off Wednesday, a full year before lawmakers begin drawing election maps.

The filing of a request to change state court rules by a former Republican legislative leader reflects the enormity of the political stakes. And it tacitly recognizes that it is all but certain to be courts that have the final say on what legislative and congressional districts look like for the next decade.

Where the lines are drawn plays a major role in determining who controls the Legislature and has an upper hand in the state’s congressional delegation. Republican lawmakers established maps in 2011 that handed them large majorities in the Statehouse and an advantage in five of the state’s eight congressional districts.

The move to keep any litigation in state court was brought by former Assembly Speaker Scott Jensen with the help of the conservative Wisconsin Institute for Law & Liberty. It seeks to put in place new rules to try to ensure the state Supreme Court — instead of federal courts — decides any redistricting litigation.

Both sides believe state court is a better forum for Republicans because conservatives control the Wisconsin Supreme Court. Litigation over the current maps played out before a panel of federal judges that dealt Republicans setbacks until the U.S. Supreme Court set a precedent in their favor in a pair of lawsuits from other states.


“Newsom orders new California in-person voting rules for November election”


Gov. Gavin Newsom gave California counties permission on Wednesday to limit their in-person voting operations for the Nov. 3 election as protection against the spread of the coronavirus — but only if they also offer three days of early voting, a tradeoff some local officials said could be expensive and challenging.

The decision, detailed in an executive order, comes almost one month after Newsom instructed California counties to mail all of the state’s 20.6 million voters an absentee ballot for the upcoming election. In doing so, he noted that voting locations would still be provided, primarily for voters with disabilities and those seeking assistance in a language other than English.

But Newsom’s earlier executive order, issued May 8, was silent on rules governing where and when to set up voting sites, leaving elections officials in limbo on plans for the upcoming presidential election. The cost to implement new guidelines could be substantial, exceeding the federal dollars already earmarked for election assistance during the pandemic and further straining county government budgets stretched thin by public health and safety spending.

Newsom’s order offers no information as to whether additional state funds will be set aside, though elections funding could be boosted in the state budget the Legislature must send to his desk by June 15….

The change presents two notable challenges for counties that have no experience with early voting. First, they will have to operate locations for four consecutive days, requiring some poll workers to work more hours or the enlistment of additional volunteers. Many poll workers are seniors who might not participate this year given their heightened risk for COVID-19 infection. The governor’s executive order on Wednesday raised the possibility of county employees being assigned to elections work.

Second, voting locations will have to be prepared to accommodate possibility thousands of voters who could show up over the four-day period, both those who choose to not vote by mail and new voters who can register as late as election day. Not all of these voters may be eligible to use the same ballot, requiring additional supplies. And because voters could likely choose any of a county’s limited voting locations, poll workers will need more than just an old-fashioned paper printout of voters who live nearby to check eligibility.


“President Trump tried to register to vote in Florida using an out-of-state address”


President Trump originally tried to register to vote in Florida while claiming his “legal residence” was in another part of the country — Washington, D.C. — according to Florida elections records.

The September 2019 registration application listed Trump’s legal residence as 1600 Pennsylvania Ave. NW, the location of the White House. That created a potential problem for Trump: Florida law requires voters to be legal residents of the state. A month later, Trump resubmitted his application to use a Florida address and in March he voted by mail in Florida’s Republican primary.

The revisions complicate Trump’s own record as a voter at a time when the president has made unsubstantiated claims of widespread fraud in mail-in balloting….

The voter application is dated Sept. 27, 2019 — the same day that Trump made the domicile change. On one of his forms that day he was telling Florida officials that his “legal residence” was Washington, D.C., and on another he was saying he was a “bona fide resident” of Palm Beach.

Florida voter-registration applicants are warned on registration forms that they may be subject to fines and even prison time if they do not provide truthful information.

There has been at least one recent instance in Florida in which a public official faced legal consequences for registering to vote at an address that was not her legal residence. Last year, the city manager of Deltona, Fl., entered into an agreement with the local state’s attorney’s office to pay more than $5,000 in fees and reimbursements for the state’s investigation to avoid being prosecuted on criminal charges in a voter-registration case. She had registered to vote using the address of Deltona’s City Hall, rather than her home address, and had cast ballots in elections using that registration.


“U.S. Supreme Court asked to rule on Kobach’s signature Kansas voter registration law”

Wichita Eagle:

Kansas will ask the U.S. Supreme Court to rule on a state law championed by former secretary of state Kris Kobach — struck down by lower courts— that requires residents to prove their citizenship when registering to vote.

The request, announced Tuesday morning by Kansas Attorney General Derek Schmidt, sets up a potentially historic showdown over voting rights if the court takes the case, with the justices possibly deciding how far states can go in imposing requirements on would-be voters.

Dale Ho, lead attorney for the American Civil Liberties Union in the case, said he was confident that the plaintiffs would prevail at the Supreme Court— as they had at the district court and appeals level.

“It stopped more than 30,000 Kansans from exercising their right to vote. Kansas’ law has been found to violate federal law multiple times, as well as the United States Constitution,” Ho said.

“It’s sad that the secretary of state and the attorney general of Kansas would seek to resuscitate Kris Kobach’s sorry legacy of voter suppression,” Ho said in a phone call….

Rick Hasen, an election law professor at the University of California, Irvine School of Law, said he was surprised by Kansas’ decision to seek a Supreme Court review of the case.

“The Supreme Court’s rules require it to defer to the factual findings of the trial court, and the the trial court found as a matter of fact that Kobach utterly failed to prove his case that noncitizen voter fraud was a real problem in Kansas. He called it the ‘tip of the iceberg’ but the trial court found it to be an ‘icicle’ made up mostly of administrative error,” Hasen said in a message.

Schwab said judicial review is needed “to provide clarity” on the issue.

“This is a really important appeal. It has consequences for the entire country, so I’m hopeful the Supreme Court will take the case and if they do take the case I am confident they will overturn the 10th circuit,” Kobach said in a phone call Tuesday.


“Maryland Lt. Gov. Rutherford calls on state board elections director to resign following mail-in primary issues”

Baltimore Sun:

Maryland’s second-in-command called on the state’s elections director to resign Wednesday, citing issues with the ways ballots have been delivered and returns have been counted in two largely mail-in contests conducted during the coronavirus pandemic.

Lt. Gov. Boyd K. Rutherford, a Republican who serves under Gov. Larry Hogan, said at the opening of an online meeting of the Board of Public Works that the state should seek “new leadership” to head the Maryland State Board of Elections.

“I really think it’s time for the administrator at the Board of Elections to step down,” he said.

The rebuke follows the disappearance of as many as 75,000 counted ballots from the state’s website early Wednesday morning. Those votes, sent in by mail and collected from drop boxes through the weekend, appeared on the site at about 11:30 p.m. Tuesday. At about 2 a.m., the city’s early returns were not available on the state site and instead were marked as “NR” for not reported.


“Ballot error led to uncountable results in Baltimore City Council race, candidates demand answers”

Baltimore Sun:

An error on ballots mailed to voters in Baltimore’s District 1 led to inaccurate returns that cannot be counted, election officials said Wednesday, and candidates are now demanding answers from state and local leaders as they await results in several close races….

In a statement issued Wednesday morning, the State Board of Elections said Maryland’s mail vendor SeaChange failed to correct an error in the ballot title for the council contest. State officials found the error while proofing ballots during the printing process, and requested SeaChange make the change.

“While the error was corrected in the official voting database, the error was not corrected on a portion of the ballots that were mailed to voters in District 1,” the state Board of Elections said. “Due to this inconsistency, vote by mail ballot styles for District 1 could not be counted properly.”


“The Cybersecurity 202: Chaos in primary elections offers troubling signs for November”


Sometimes-chaotic primary elections across eight states and the District of Columbia foreshadowed challenges that could undermine the security and legitimacy of the general election in November. 

There were signs of dangerous shortcuts and workarounds, especially in the District where officials couldn’t get mail-in ballots out to everyone who requested them and resorted to accepting emailed ballots. Security experts warn such ballots are highly vulnerable to hacking because voters can’t verify they were recorded accurately. 

That was the biggest security concern on a night that was also marked by hours-long lines for in-person voting, last-minute extensions for absentee voting, and anxiety about going to the polls during the coronavirus pandemic and nationwide protests against police violence, which prompted curfews in some places including Washington and Philadelphia. 

The good news was that Department of Homeland Security officials said they hadn’t seen any signs of cyberattacks or significant disinformation campaigns from Russia or elsewhere as of a midday briefing. But they warned that disinformation attacks in particular might take more time to identify. 

Overall, the day produced a middling report card for election officials, with one big note: Needs improvement before November. 


“California lawmakers advance mail-ballot legislation to bolster Newsom election change”


The California Republican Party and its national GOP counterparts have sued to stymie Newsom, arguing he had exceeded his statutory authority. Former Rep. Darrell Issa, who is running to return to Congress, has also challenged Newsom’s order.

President Donald Trump has blasted mail voting on the grounds that it undermines Republicans, and he has repeatedly mischaracterized Newsom’s order to bolster his claims that mail balloting invites fraud.

While Newsom has said he already believes his order is on “firm legal ground,” he allowed that “to the extent [legislators] want to codify it I think that could help as well.”

“I do think there’s some existing legal authority” to pursue that goal, said Sen. Henry Stern (D-Canoga Park), “but I see this measure as a critical piece of girding that effort.”


“Elegy for Anti-corruption Law: How the Bridgegate Case Could Crush Corruption Prosecutions and Boost Liars”

Ciara Torres-Spelliscy has posted this draft on SSRN (forthcoming, American University Law Review). Here is the abstract:

This piece discusses how the case Kelly v. United States, which was pending before the Supreme Court when this piece was written, was likely to expand two different developments in the Roberts Court’s jurisprudence: (1) expanding the constitutional protections for lying under the First Amendment and (2) narrowing the definition of corruption. This Piece describes how lower courts ruled in the Kelly case as well as arguments deployed by Kelly’s lawyers at the Supreme Court to try to exonerate their client Bridget Anne Kelly for her role in the Bridgegate scandal.

Epilogue: As this piece was being printed, the Supreme Court decided Kelly v. United States, 590 U. S. ____ , No. 18-1059 (U.S. May. 7, 2020). As predicted by the piece, the Supreme Court in Kelly expanded the Skilling case and narrowed what counts as corruption concluding “not every corrupt act by state or local officials is a federal crime.”


“Facebook Employees Stage Virtual Walkout to Protest Trump Posts”


Hundreds of Facebook employees, in rare public criticism on Monday of their own company, protested executives’ decision not to do anything about inflammatory posts that President Trump had placed on the giant social media platform over the past week.

Many of the employees, who said they refused to work in order to show their support for demonstrators across the country, added an automated message to their digital profiles and email responses saying that they were out of the office in a show of protest….

“The hateful rhetoric advocating violence against black demonstrators by the US President does not warrant defense under the guise of freedom of expression,” one Facebook employee wrote in an internal message board, according to a copy of the text viewed by The New York Times.

The employee added: “Along with Black employees in the company, and all persons with a moral conscience, I am calling for Mark to immediately take down the President’s post advocating violence, murder and imminent threat against Black people.” The Times agreed to withhold the employee’s name.

Mr. Zuckerberg has argued on a number of occasions that Facebook should take a hands-off approach to what people post, including lies from elected officials and others in power. He has repeatedly said the public should be allowed to decide what to believe.

That stand was tested last week when Twitter added fact-check and warning labels to two tweets from the president that broke Twitter’s rules around voter suppression and glorification of violence. But as Twitter acted on Mr. Trump’s tweets, Facebook left his posts on its platform alone. Mr. Zuckerberg said Mr. Trump’s posts did not violate the social network’s rules.


“The Technology 202: Mark Zuckerberg spoke with civil rights leaders about Trump’s posts. It didn’t go well.”


Top Facebook executives, including Mark Zuckerberg, spoke with civil rights leaders last night as the company confronts a wave of backlash over its decision not to moderate President Trump’s controversial posts. 

But the roughly hour-long call, intended to show the company takes concerns from the black community seriously, only further inflamed tensions. 

Color of Change President Rashad Robinson, NAACP Legal Defense Fund president Sherrilyn Ifil and The Leadership Conference on Civil and Human Rights chief executive Vanita Gupta immediately blasted Zuckerberg in a statement following the call. 


“In Pennsylvania, officials prepare for coronavirus, civil unrest to disrupt Tuesday primary”


Election officials across Pennsylvania braced for a chaotic day of voting in Tuesday’s primary, as the convergence of the coronavirus pandemic and protests over the death of George Floyd threaten to close in-person polling locations, even as thousands of voters who requested mail-in ballots still have not received them.

In Philadelphia, city officials said they were working with police and other emergency personnel to prevent violence from disrupting voting. The city planned to open 190 polling places instead of the usual 831, but with a late surge of poll workers canceling their commitments out of fear of unrest, there was no guarantee that even the reduced number of polling sites would open Tuesday morning.

“This was already a difficult task with the pandemic, and the current events have only made that difficult task harder,” said Nick Custodio, a deputy city commissioner.AD

Reached moments before voting was scheduled to begin at 7 a.m., Custodio said election officials were receiving numerous calls, and he could not say whether polling places would open on time.

At the A.W. Christy Recreation Center in predominantly African American West Philadelphia — where 15 separate polling locations were consolidated — voters arrived with mail ballots in hand, unsure of what to do with them. With no ballot dropbox available, officials directed voters to a public library a mile away.

Voting advocates said many voters were showing up at their long-standing voting locations, only to find facilities shuttered and with no signs directing them to a consolidated location. They also said black voters have struggled to vote absentee, largely because of a combination of mistrust about dropping their ballot in the mail and lack of Internet access to understand how to do it.


“Republicans Fear Trump’s Criticism of Mail-In Ballots Will Hurt Them”


President Trump has relentlessly attacked mail voting, calling it a free-for-all for cheating and a Democratic scheme to rig elections.

None of the charges are true.

But as eight states and the District of Columbia vote on Tuesday in the biggest Election Day since the coronavirus forced a pause in the primary calendar, it is clear that Mr. Trump’s message has sunk in deeply with Republicans, who have shunned mail ballots.

Republican officials and strategists warned that if a wide partisan gap over mail voting continues in November, Republicans could be at a disadvantage, an unintended repercussion of the president’s fear-mongering about mail ballots that could hurt his party’s chances, including his own.

In Pennsylvania, Iowa, Indiana and New Mexico, all states voting on Tuesday that broadly extended the option to vote by mail this year, a higher share of Democrats than Republicans have embraced mail-in ballots.

See also my April 20 NY Daily News oped, GOP War on Mail Ballots May Backfire.


“Election officials contradict Barr’s assertion that counterfeit mail ballots produced by a foreign country are a ‘real’ worry”


Current and former election administrators said it would be virtually impossible for a foreign country to produce and mail in phony absentee ballots without detection, an issue Attorney General William P. Barr raised as a serious possibility in an interview published Monday.

Barr told the New York Times Magazine that a foreign operation to mail in fake ballots was “one of the issues that I’m real worried about.”

“We’ve been talking about how, in terms of foreign influence, there are a number of foreign countries that could easily make counterfeit ballots, put names on them, send them in,” Barr said. “And it’d be very hard to sort out what’s happening.”

Barr did not offer any evidence of how such a scenario would take place.

Elections officials in multiple states said it would be virtually impossible for a foreign government to achieve what Barr described.


“U.S. Supreme Court won’t hear challenge to Montana campaign finance law”

Bozeman Daily Chronicle:

The U.S. Supreme Court on Monday declined to take up a case that challenged Montana’s law on disclosing the spending for political ads within 60 days of an election.

In August 2019, the 9th U.S. Circuit Court of Appeals upheld Montana’s law that nonprofit groups running ads that mention candidates, political parties or ballot issues in the 60-day window before an election have to report any spending of $250 or more and say who funded their efforts.


“As Trump attacks voting by mail, GOP builds 2020 strategy around limiting its expansion”

WaPo deep dive:

President Trump’s persistent attacks on mail-in voting have fueled an unprecedented effort by conservatives to limit expansion of the practice before the November election, with tens of millions of dollars planned for lawsuits and advertising aimed at restricting who receives ballots and who remains on the voter rolls.

The strategy, embraced by Trump’s reelection campaign, the Republican National Committee and an array of independent conservative groups, reflects the recognition by both parties that voting rules could decide the outcome of the 2020 White House race amid the electoral challenges posed by the coronavirus pandemic.

Helping drive the effort is William Consovoy, a veteran Supreme Court litigator who also serves as one of Trump’s personal lawyers. Consovoy’s Virginia-based law firm is handling a battery of legal actions on behalf of the RNC, several state GOPs and an independent group called the Honest Election­­­­­­­­­­­­­­­­­­­­­­­­­­­s Project, which is connected to a Trump adviser.

The legal firepower and direct involvement of the national party reflect a major escalation in the conservative battle over voter fraud and voting rights, which until this year had primarily been waged by lesser-known groups with far fewer resources. The tactics of those organizations are now being embraced by new players with connections to influential figures in the president’s orbit….

According to people who know Consovoy, he is also a friend of conservative activist Leonard Leo, who has raised hundreds of millions of dollars for conservative causes in recent years and has advised Trump on his appointment of conservative Supreme Court Justices Brett M. Kavanaugh and Neil M. Gorsuch.

Leo has spent an increasing amount of time studying voting cases, advising outside groups and encouraging conservative donors to support the efforts, said multiple people with knowledge of his activities. He declined a request for comment.

Leo is raising money for two conservative nonprofit networks called the 85 Fund and the Concord Fund, people familiar with his activities said. The Honest Elections Project is a project of the 85 Fund, the people said.

Snead called Leo a “supporter” of Honest Elections, declining to comment further.