All posts by Rick Hasen

“Supreme Court Voices Skepticism Over Social-Media Censorship Claims Against Government”

WSJ:

The Supreme Court seemed likely Monday to reject a bid by GOP-led states to restrict the federal government from urging social-media companies to remove allegedly misleading posts or disinformation on their platforms, unless there is a threat of official retribution.

The Republican attorneys general of Missouri and Louisiana, along with several individuals who complained that online platforms such as 

Facebook suppressed their views against vaccines and lockdowns during the Covid-19 pandemic at the government’s demand, filed the First Amendment suit in 2022. Lower courts have largely sided with the plaintiffs, finding that Biden administration officials’ content requests amounted to government coercion, but the high court during oral arguments on Monday voiced more sympathy with the administration’s defense.

The social-media companies themselves aren’t involved in the case, and liberal justices questioned whether any plaintiffs suffered harms that gave them a right to sue. And justices across the spectrum expressed skepticism that the government’s interactions with the platforms, even if heated, amounted to official restraint. 

For one, said Chief Justice John Roberts, “the government is not monolithic.” Different individuals, agencies and branches of government can have different views, he said, and the media has contacts with a variety of official sources. “That has to dilute the concept of coercion,” he said.

Justice Brett Kavanaugh offered a national-security analogy to the government’s campaign against disinformation—something that conservative critics contend has targeted their opinions. 

 “It’s probably not uncommon for government officials to protest an upcoming story on surveillance or detention policy and say, ‘If you run that, it’s going to harm the war effort and put Americans at risk,’ ” said Kavanaugh, who served in the George W. Bush White House when surveillance and detention policies were front-page news. 

Deputy Solicitor General Brian Fletcher, representing the Biden administration, quickly agreed. “That’s an example of a valuable sort of interchange as long as it stays on the persuasion side of the line,” he said. Threatening a tech company with retribution for failure to comply, like an antitrust investigation, would be a different story, he said.

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Schedule for Wash U. Election Law Conference

This looks great and so sorry I wasn’t able to make it:

Friday, March 22

1:30 to 2:45: Election Law and Race

The Riddle of Race-Based Redistricting

Travis Crum

Reconstruction’s Last Monument

Maureen Edobor

Senior Discussant: Josh Sellers

3:00 to 4:15: Election Law after the 2020 Election 

Incitement as Coordination

Nicholas Almendares

Second-Guessing State Courts in Election Cases

Michael Weingartner

Senior Discussant: Carolyn Shapiro

4:30 to 5:45: Keynote Panel

Democracy Unmoored: Populism and the Corruption of Popular Sovereignty

Samuel Issacharoff

Free to Judge: The Power of Campaign Money in Judicial Elections

Michael Kang & Joanna Shepherd

Moderator: Travis Crum

Saturday, March 23

9:30 to 10:45: Election Law and Quantitative Methods

The Still Secret Ballot: The Limited Privacy Cost of Transparent Election Results

Michael Morse

Reconstruction and Representation

Michael Olson

Senior Discussant: Abby Wood

11:15 to 12:30: Election Law and Democratic Theory

Reconsidering the Legacy of Disjunctive Legal Change: Lessons of Baker v. Carr

Jacob Eisler

The Democratic Value of “Foreign Interference” in Campaign Finance

John J. Martin

Senior Discussant: Lisa Marshall Manheim

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“Suggested Principles for State Statutes Regarding Ballot Marking and Vote Tabulation”

New:

This letter, signed by 20 election cybersecurity experts, was addressed to the Pennsylvania State Senate Committee on Government in response to a request for policy advice, but it applies in any state — especially those that use Ballot Marking Devices for all in-person voters: Georgia and South Carolina; most counties in Arkansas, New Jersey, and West Virginia; some counties in Texas, Tennessee, Indiana, Ohio, Pennsylvania, Kansas, Nevada, and California.

Executive Summary

We believe that the goal of laws, regulations and directives relating to elections must be focused on fairness, security, transparency, and accessibility. Each state should strive to approach the gold standard in every category, so that no reasonable candidate or party may have grounds to object that the process was unfair, insecure, or compromised. The process must be transparent, so the public may be assured the winners won and the losers lost.

We believe that no system is perfect, with each having trade-offs. Hand-marked and hand-counted ballots remove the uncertainty introduced by use of electronic machinery and the ability of bad actors to exploit electronic vulnerabilities to remotely alter the results. However, some portion of voters mistakenly mark paper ballots in a manner that will not be counted in the way the voter intended, or which even voids the ballot. Hand-counts delay timely reporting of results, and introduce the possibility for human error, bias, or misinterpretation.

Technology introduces the means of efficient tabulation, but also introduces a manifold increase in complexity and sophistication of the process. This places the understanding of the process beyond the average person’s understanding, which can foster distrust. It also opens the door to human or machine error, as well as exploitation by sophisticated and malicious actors.

Rather than assert that each component of the process can be made perfectly secure on its own, we believe the goal of each component of the elections process is to validate every other component.

Consequently, we believe that the hallmarks of a reliable and optimal election process are hand-marked paper ballots, which are optically scannedseparately and securely stored, and rigorously audited after the election but before certification. We recommend state legislators adopt policies consistent with these guiding principles, which are further developed below….

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“LWV Files Federal Lawsuit Against AI-Generated Robocalls Sent on the Eve of the New Hampshire Presidential Primary”

Release:

Today, the League of Women Voters of New Hampshire, the League of Women Voters of the United States, and individual New Hampshire voters filed a federal lawsuit against Steve Kramer, Lingo Telecom, LLC, and Life Corporation for voter intimidation, coercion, and deception ahead of the 2024 New Hampshire presidential primary. The defendants used illegal AI-generated robocalls to discourage voters from participating in the primary. The lawsuit, filed in the United States District Court for the District of New Hampshire, seeks to order the defendants to cease engaging in illegal, dishonest, and deceptive tactics nationwide.

Two days before the New Hampshire presidential primary, the defendants sent robocalls to New Hampshire voters with a “deepfake” simulated voice of President Joe Biden to discourage them from participating in that primary. The New Hampshire robocalls urged recipients not to vote in the primary and to “save” their vote for the November 2024 US Presidential Election.  

Read the complaint.

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“Federal Judge Greenlights Lawsuit Challenging Virginia’s Permanent Felony Disenfranchisement Law”

Release:

The U.S. District Court for the Eastern District of Virginia ruled that a lawsuit challenging Virginia’s felony disenfranchisement law has merit and can proceed. The ACLU of Virginia, WilmerHale, and Protect Democracy filed the suit last year on behalf of individual Virginians, who are currently disqualified from voting under Virginia law despite having served their time in prison, as well as Bridging the Gap in Virginia, a Virginia-based organization that provides reentry support for the formerly incarcerated.

The first-of-its-kind suit claims that Virginia’s permanent disenfranchisement for all felonies violates the Virginia Readmission Act—one of several federal laws passed during Reconstruction that prohibited former Confederate states from depriving their citizens of the right to vote except as punishment for a narrow set of felonies. 

After the Civil War, Virginia and other Southern states changed their laws to prevent newly freed Black voters from casting their votes. They did so, in part, by manipulating their criminal codes to expand the types of crimes that triggered disenfranchisement with the specific intent to strip Black people of their voting rights. Today, as a direct consequence, over 300,000 Virginians are disenfranchised due to a felony conviction. This has had the greatest impact on Black Virginians, who make up less than 20 percent of Virginia’s voting-age population, yet account for nearly half of Virginians who are disenfranchised due to felony convictions.

The Court’s decision allows the individual Plaintiffs’ claims under the Virginia Readmission Act to proceed; the Court dismissed Plaintiffs’ separate claims under the Eighth Amendment and Section 1983. The Court also dismissed organizational Plaintiff Bridging the Gap from the case. 

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“To boost Trump, GOP attorneys general charge into battle over state election rules”

Zachary Roth:


With less than six months before voting begins, the legal jousting over the rules for the 2024 election is already underway. And former President Donald Trump’s campaign is getting support from allies who have stayed mostly under the national radar: red-state attorneys general. 

In court filings made in recent months, these chief state legal officers have advanced a string of arguments — some strikingly far-reaching — that appear designed to lay the groundwork for Republican legal victories in the event of a contested presidential vote, or to otherwise boost Trump and the GOP. 

Often led by Alabama Attorney General Steve Marshall, a loose coalition of Republican-led states has submitted briefs urging judges to:

  • Throw out certain mail ballots,
  • Weaken long-standing protections against racial discrimination in voting, 
  • Green-light gerrymandered district maps, 
  • And empower partisan state legislatures, rather than courts, to set election rules.

“These are all setting up an argument, potentially, to say that the 2024 election was flawed because of all these state practices that are questionable,” said Paul Nolette, a political science professor at Marquette University in Milwaukee who has written in depth on the role of state AGs. “The AGs just have been critical in pushing these arguments.”

Marshall’s office did not respond to a request to comment for this story. But last month Marshall also led a coalition of red states in submitting an amicus brief urging the Supreme Court to pause Trump’s election subversion trial tied to the events of Jan. 6, 2021 — a stance that aligned the group perfectly with the interests of the Trump campaign. 

And in 2020, many of these same state AGs, including Marshall, sought to have the courts overturn Trump’s election loss.

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“Wisconsin is lagging behind other swing states in shoring up election policies following 2020 chaos”

NBC News:

Four years ago, Wisconsin arguably was the state where Donald Trump came the closest to overturning the election results.

A barrage of lawsuits aimed at invalidating hundreds of thousands of mostly Democratic votes in the crucial battleground sought to take advantage of certain election policies in the state related to absentee ballots that were cast early and by confined or disabled voters, as well as those where election workers completed certain missing information on the envelopes.

The effort made its way all the way to the state Supreme Court, then controlled by conservatives, which ruled by one vote against Trump’s bid to overturn the results.

And yet, heading into the next presidential election, lawmakers in Wisconsin have done little to prevent a similar scenario from playing out again in the event of a close race.

State lawmakers have failed to enact any measures that would serve to clarify the nuances of absentee ballots that Trump, now the presumptive 2024 Republican nominee, attempted to exploit. They also have not closed loopholes that could provide allies of the former president with openings to insert conspiracy theories and misinformation.

And the Wisconsin Elections Commission, which oversees elections in the state, has issued pieces of modest guidance, but remains flooded with partisan attacks and efforts to impeach its top official.

That all stands in contrast to other swing states that were also targeted by Trump allies in the wake of the 2020 election. In Michigan, Democratic lawmakers have implemented broad reforms to election security and ballot counting. And in Pennsylvania, the Democratic governor recently rolled out an election security task force designed to mitigate threats to the vote this year.

But in Wisconsin, many of the same obstacles, questions and gray areas — regarding drop boxes, disabled and elderly voters, ballot processing and, perhaps most importantly, the protection of an election oversight apparatus that has been inundated by threats and attacks — remain unaddressed, alarming election workers and watchdogs in the state.

“Statewide, I don’t see a lot of change,” said Dane County Clerk Scott McDonell, the top election official in Wisconsin’s second-most populous county. “It’s not like something dramatically different has happened here,” added McDonell, a Democrat.

Jay Heck, the executive director Common Cause Wisconsin, the state’s branch of the national nonpartisan government watchdog group, added that the consequences could be dire if the right mix of circumstances were to emerge on or following Election Day.

“It could all explode,” he said.

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A Surreal Right to Vote: Responding to the Balkinization Symposium

[Cross-posted from Balkinization]

A Surreal Right to Vote: Responding to the Balkinization Symposium

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).
 
Richard L. Hasen
 
When Jack Balkin graciously put together a symposium featuring leading election law thinkers to discuss my new book, A Real Right to Vote, I did not expect that my proposal to amend the U.S. Constitution to affirmatively protect the right to vote would garner universal support. But I also did not expect to be compared to both Don Quixote and a milquetoast version of Paul Revere who wants to develop a plan to fight the British in 50 years. Although all of the eminent commentators—Bruce CainWilfred CodringtonAlex KeyssarSandy LevinsonDerek MullerDan TokajiMichael Waldman, and Emily Zhang— have many positive things to say about this book, a constitutional amendment, and my work more generally (and for that I am grateful), there’s a definite Goldilocksian problem: I am either too bold in my proposals, or too naïve about the possibility of change in our hyperpolarized political era, or insufficiently audacious in not also solving the problem of partisan gerrymandering or junking the entire Constitution and starting over with a constitutional convention.
 
Rather than taking solace for falling somewhere in the middle of the spectrum among these eminent commentators, it is worth asking what these set of critiques tell about three key issues I address in A Real Right to Vote: the nature of the problems with the current state of U.S. elections and election law; the extreme difficulty of achieving meaningful constitutional change, especially in the area of voting rights; and the lack of viable alternatives to pursuing a long term constitutional strategy to expand voting rights.

Continue reading A Surreal Right to Vote: Responding to the Balkinization Symposium
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“Obscure legal theory could weaken voters’ protections from racist laws”

The Guardian:

A federal court has embraced a novel legal theory that seriously threatens one of the last legs of the Voting Rights Act of 1965.

At the heart of the dispute is who has the right to bring a case under the law, a crown jewel of the civil rights movement that has worked to prevent voting discrimination against minorities. For more than half a century, the Department of Justice as well as private plaintiffs – anyone from an individual voter to a civic action group – have filed cases under section 2 of the law, which prohibits any voting practice or procedure that discriminates on the basis of race.

The case that could upend the law started out as a typical voting rights lawsuit. In late 2021, the Arkansas NAACP and the Arkansas Public Policy Panel sued the state, arguing that the new Arkansas house of representatives districts illegally discriminated against Black Arkansans by packing the Black vote into a disproportionately small number of districts.

But in a surprise ruling in 2022, a federal judge ruled that only the federal government, not private plaintiffs can file lawsuits under section 2. The US court of appeals for the eighth circuit has since upheld that ruling. The issue is likely to be ultimately resolved by the US supreme court.

Voting rights lawyers say the rulings are “radical and unprecedented”. For decades, the vast majority of cases under section 2 have been filed by private plaintiffs, not the government. Only allowing the government to bring section 2 cases would bring enforcement of the Voting Rights Act to a halt.

“Private plaintiffs bringing cases under section two has been one of the hallmark ways to protect voting rights in this country,” said Jonathan Topaz, a staff attorney for the ACLU Voting Rights Project. “If private plaintiffs are unable to bring suit and vindicate their rights under section 2, then in our estimation, there will be large swaths of violations of section 2 that will go unremedied.”

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“Supreme Court rejects appeal by former New Mexico county commissioner banned for Jan. 6 insurrection”

AP:

The Supreme Court on Monday rejected an appeal from a former New Mexico county commissioner who was kicked out of office over his participation in the Jan. 6, 2021, insurrection at the U.S. Capitol.

Former Otero County commissioner Couy Griffin, a cowboy pastor who rode to national political fame by embracing then-President Donald Trump with a series of horseback caravans, is the only elected official thus far to be banned from office in connection with the Capitol attack, which disrupted Congress as it was trying to certify Joe Biden’s 2020 electoral victory over Trump.

At a 2022 trial in state district court, Griffin received the first disqualification from office in over a century under a provision of the 14th Amendment written to prevent former Confederates from serving in government after the Civil War.

Though the Supreme Court ruled this month that states don’t have the ability to bar Trump or other candidates for federal offices from the ballot, the justices said different rules apply to state and local candidates.

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“Pro-Trump disruptions in Arizona county elevate fears for the 2024 vote”

WaPo:

As the board of supervisors for Arizona’s largest county abruptly ended a meeting late last month, a swarm of people rushed toward the dais, shouting that the members were illegitimate.

The Maricopa County leaders made a beeline for a side door and were swiftly escorted out of the chamber by security guards, who called for backup from the sheriff’s office. After the meeting’s live-feed went dead, a member of the crowd yelled that a “revolution” was underway.

“I’m here today to put you on public notice and to inform you that you are not our elected officials,” said Michelle Klann, co-founder of a pro-Trump group, from a podium she had commandeered. “This is an act of insurrection. Due to all the voter fraud, you have never been formally voted in.”

The scene at the Feb. 28 meeting terrified many Maricopa employees and others who were reminded of what happened after Joe Biden won the county — and, with it, Arizona — in the 2020 presidential race. Back then,Trump supporters used baseless fraud claims to try to pressure or scare elected leaders into changing the results for the metro Phoenix county, which is home to more than half of Arizona’s residents.

Now, with another presidential election quickly approaching and Arizona again likely to be central to Donald Trump’s electoral strategy, the incident late last month has revived fears that officials responsible for running Maricopa County elections will be targeted with a campaign of threats and abuse — or worse.

“This was an organized, coordinated attack,” said one top county official who spoke on the condition of anonymity to discuss sensitive security matters. “It was a dress rehearsal for the election.”

Since the 2020 vote, theMaricopa supervisors — most of whom are Republicans — have faced relentless public ridicule, conspiracy theories and death threats for signing off on the results and refusing to go along with Trump’s efforts to overturn the outcome.

Trump’s razor-thin loss of the state — a mere 10,457 votes of nearly 3.4 million cast — thrust its most important battleground county into the heart of national efforts to undermine confidence in elections.

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New Jersey: “Attorney General says organization lines are unconstitutional”

New Jersey Globe:

Attorney General Matt Platkin has told a federal judge that New Jersey’s county organization line is unconstitutional, and he is not prepared to defend it in court, the New Jersey Globe has confirmed.

Platkin sent a letter to U.S. District Court Judge Zahid Quraishi saying his office will not intervene in a lawsuit filed by Rep. Andy Kim (D-Moorestown).

“The attorney general will not otherwise provide a defense of the challenged statutes on the merits in that case,” the attorney general’s office told Quraishi.

“A central reason for the attorney general’s defense of state statutes is to implement the will of the democratic process that enacted them, but as explained above, subsequent court decisions and practices on the ground have overtaken the Legislature’s original intent in enacting the challenged state statutes,” the AG’s office said.  “The traditional need for the Attorney General to defend the results of the democratic process does not apply neatly to a case where the plaintiffs produced substantial record evidence to challenge the statutes as undermining the democratic process.”

In his brief, the AG’s office said that “New Jersey stands alone across the nation in the use of bracketing for primary-election machine ballots, which further undermines the claim that these laws are necessary to advance the government interests on which the attorney general would have relied.”

“No official that the attorney general represents in court implements these laws, so there is no risk that any state agencies would simultaneously be enforcing but declining to defend a particular statute,” the AG’s office said. “This court has made clear in its prior decisions that the constitutional question at issue turns on the evidence. The attorney general has concluded that the evidence presented does not support a defense of the constitutionality of these statutes.”

His move does not necessarily mean that Quraishi will abolish the line system, but it could give the judge plenty of cover if he does.

Ending the line comes at a terrible time for Tammy Murphy, who is depending on organization endorsements from large Democratic counties, including Bergen, Essex, Camden, Middlesex, and Hudson, to defeat Kim in the Democratic U.S. Senate primary….

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“Trump says there will be ‘bloodbath’ if he loses 2024 election, ramps up anti-migrant rhetoric”

ABC News:

What was scheduled to be a guest appearance by former President Donald Trump at a campaign rally for Ohio Senate candidate Bernie Moreno quickly turned into Trump saying there would be a “bloodbath” for the country if he doesn’t win the 2024 general election — while also railing against the electric vehicle industry manufacturing automobiles outside the U.S. and using disparaging language to describe immigrants who are in the country illegally.

“We’re gonna put a 100% tariff on every single car that comes across the line, and you’re not gonna be able to sell those guys if I get elected,” Trump said at Saturday’s event while criticizing overseas manufacturing production.

“Now, if I don’t get elected, it’s gonna be a bloodbath for the whole … that’s gonna be the least of it, it’s gonna be a bloodbath for the country, that’ll be the least of it.”

Trump’s campaign has pushed back on claims Trump was talking about violence throughout the country should he lose reelection in 2024, arguing he was talking about the destruction of the auto industry.

“Joe Biden’s Insane EV Mandate will slaughter the American auto industry,” senior Trump campaign adviser Jason Miller posted on X. “So many jobs killed! That’s why we have to elect President Trump.”

However, President Biden’s campaign seized on the comments, highlighting how Trump has often praised authoritarian leaders and starts many of his rallies saluting the American flag while “Justice for All” by the “J6 Prison Choir” plays.

“This is who Donald Trump is,” Biden-Harris spokesperson James Singer said in a statement Saturday night.

“He wants another January 6, but the American people are going to give him another electoral defeat this November because they continue to reject his extremism, his affection for violence, and his thirst for revenge.”

Later, as Trump was mounting the stakes of the November election, he argued, “I don’t think you’re going to have another election… in this country, if we don’t win this election … certainly not an election that’s meaningful.”

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