“Menendez Trial May Hinge on a New Definition of Bribery”

NYT:

The defense is scheduled to begin its case on Monday, but first Judge William H. Walls is expected to rule on a motion to dismiss it, a motion that he hinted he was considering during arguments in court about the Supreme Court’s decision overturning the corruption conviction of Bob McDonnell, a former governor of Virginia.

In fact, the McDonnell decision has loomed over prosecutors throughout the Menendez trial, and Judge Walls suggested that he was leaning toward interpreting the ruling as invalidating a theory of bribery, known as “stream of benefits,” that is central to the government’s case.

The Supreme Court’s decision also set a high bar for what constitutes the kind of act an elected official must perform to have an exchange qualify as bribery — setting up meetings for constituents or making a phone call on behalf of a constituent no longer qualifies.

But in a narrative spun out in tedious, often repetitive, fashion over six weeks of testimony in the federal courthouse in Newark, prosecutors laid out the many ways that Mr. Menendez had helped Dr. Melgen whenever he ran into trouble.

Share

“Trump campaign legal bills topped $1 million last quarter”

WaPo:

President Trump’s reelection committee spent more than $1 million on legal bills last quarter as investigations into Russian meddling in the 2016 election pressed on through the summer, according to a disclosure filed Sunday with the Federal Election Commission.

The filing shows the committee’s “legal consulting” expenditures came to $1.1 million between July and September, including $802,185 paid to the law firm Jones Day, which has represented the campaign. Another $267,000 was paid to attorneys representing the president’s ­eldest son, Donald Trump Jr., in the Russia investigations.

Since the beginning of the year, the Trump campaign and the Republican National Committee have spent $2.4 million on legal fees — and the bills appear to be mounting. The latest FEC reports show that the campaign spent more on legal bills over the past three months than it did during the first and second quarters of this year combined.

Share

“Donald Trump campaign ramps up 2020 re-election fundraising”

CPI:

New financial disclosures President Donald Trump’s re-election committee filed Sunday with the Federal Election Commission tell a story of two Trump campaigns.

On one end, Trump, both by choice and circumstance, remains tethered to his 2016 presidential election effort. A federal investigation is probing whether he or his political aides colluded with Russians, and Trump himself frequently skewers his Democratic foil, Hillary Clinton, as if he didn’t defeat her in November. Trump’s campaign committee this summer spent more than $1 million on legal bills, disclosures show — much ostensibly stemming from the Russia controversy.

All the while, Trump is racing forward with unprecedented haste to win re-election in 2020. He’s conducting campaign rallies and raising millions of dollars in cash despite no one of stature — save, perhaps, for Rep. John Delaney, D-Md. — yet running against him.

Share

“Black Lawmakers Hold a Particular Grievance With Facebook: Racial Exploitation”

NYT:

 For more than an hour, Sheryl Sandberg, Facebook’s high-profile chief operating officer, sheepishly pledged to “do better” — over and over — as stern-faced members of the Congressional Black Caucus grilled her on Thursday about Russian ads aimed at exploiting racial divisions during last year’s election.

For black lawmakers, it was a chance to vent — at the outrage they felt toward Russian intelligence and its efforts to foment racial unrest in the country; at the frustration they felt toward three separate congressional investigations into Russian interference that have plodded on and yielded little; and at Facebook itself, which has been long on promises and short on action.

Share

“Trump voter fraud commission researcher arrested on child pornography charges”

WaPo:

 Maryland man arrested this week after authorities said they found child pornography on his cellphone worked for President Trump’s voter fraud commission, according to a senior administration official.

Ronald Williams II, 37, of Suitland, was a researcher for the Presidential Advisory Commission on Election Integrity, said the official, who requested anonymity to discuss a personnel matter.

Share

“Wary of Hackers, States Move to Upgrade Voting Systems”

Michael Wines for the NYT:

State election officials, worried about the integrity of their voting systems, are pressing to make them more secure ahead of next year’s midterm elections.

Reacting in large part to Russian efforts to hack the presidential election last year, a growing number of states are upgrading electoral databases and voting machines, and even adding cybersecurity experts to their election teams. The efforts — from both Democrats and Republicans — amount to the largest overhaul of the nation’s voting infrastructure since the contested presidential election in 2000 spelled an end to punch-card ballots and voting machines with mechanical levers.

One aim is to prepare for the 2018 and 2020 elections by upgrading and securing electoral databases and voting machines that were cutting-edge before Facebook and Twitter even existed. Another is to spot and defuse attempts to depress turnout and sway election results by targeting voters with false news reports and social media posts.

Share

“Ohio’s illegal voter purges shouldn’t be getting Trump Justice Department’s blessing: Vanita Gupta”

Oped in Cleveland Plain Dealer:

Ohio appealed the ruling, and in a troubling about-face, the Trump Justice Department reversed its earlier opposition to Ohio’s actions and decided to support the state’s continued efforts to purge voters.

The Leadership Conference on Civil and Human Rights proudly joined the NAACP Legal Defense and Educational Fund in submitting a “friend of the court” brief, arguing that the Supreme Court should be skeptical of DOJ’s new position, particularly given the length of time DOJ had opposed purge practices like Ohio’s.

The sudden shift in a longstanding position because of a change in political administrations validated the worst fears about the Trump administration.

It also raises real concerns about the politicization of the Justice Department’s historic role in protecting voting rights for all eligible voters. It could also have real consequences for the rights of thousands of Ohioans, and ultimately millions of Americans, to exercise their right to vote.

Share

“Google, Facebook putting an early mark on political advertising bills”

Politico:

Google and Facebook are looking to make an early imprint on legislation being drafted in the House and Senate that would force them and other online networks to disclose information about the buyers of political ads.

Lobbyists from the Silicon Valley behemoths have met with the staffs of Sens. Mark Warner and Amy Klobuchar and Rep. Derek Kilmer, all of whom are drawing up bills that would impose new regulations on the industry, according to Democratic aides and company representatives. The Senate bill is expected to be formally introduced next week. It is not clear when the House legislation, which has not been previously reported, will be introduced.

Share

NC: “Voting defamation suit seeks to widen net, accuses GOP attorneys of conspiracy”

WRAL:

The attorneys who brought a defamation lawsuit over voter protests filed in the wake of last November’s election want to add former Gov. Pat McCrory’s legal defense fund and the attorneys who helped file those protests to their suit.

They also want to turn the case into a class-action suit on behalf of more than 100 people who they say were unfairly maligned when Republicans falsely accused them of casting fraudulent votes. Attorneys for the Southern Coalition for Social Justice argue there was a coordinated effort by attorneys from a well-connected Republican law firm in Virginia to throw the results of North Carolina’s close gubernatorial race into doubt.

Those attorneys, the lawsuit argues, helped North Carolina voters challenge Democratic votes “to delay certification of the election and suggest that voter fraud affected the election results.”

Attorneys with the firm accused, Holtzman Vogel Josefiak Torchinsky, did not return messages seeking comment Friday. Dallas Woodhouse, executive director of the North Carolina Republican Party, called the lawsuit “a disgusting intimidation effort” meant to dissuade people from filing reasonable challenges.

Share

“Alabama election officials remain confused over which felons should be able to vote”

AL.com:

A number of election officials across Alabama remain confused about the impacts of a sweeping new felon disenfranchisement law, according to interviews this week with registrars representing 12 counties.

The new law, which took effect in August, clarified which felons are allowed to vote and what steps they need to take to restore that right.

But four registrars told AL.com this week that they were not entirely clear about the intricacies of the law and how it applies to their duties. And multiple nonprofits and advocates told AL.com last month that they were working with people who were being wrongly barred from regaining the right to vote because the law is not being properly and consistently followed.

Share

“China’s Internet censors know how to block Russian interference”

Eric Wang:

Any regulation of speech about political issues by foreigners could end up entangling U.S. citizens. Therefore, American supporters of Black Lives Matter, to name one obvious issue, may very well end up being regulated too.

Even if we could use technology, such as blocking overseas Internet Protocol (IP) addresses, to prevent only foreign nationals from influencing us, this would still limit Americans’ First Amendment rights. As the Supreme Court has held, the right to speak also involves the right to listen.

Expect to see more arguments that society must tolerate foreign interference to preserve the First Amendment. I strongly disagree and my concern is longstanding. Indeed, here’s a lead I wrote for New Republic piece in 2011:

Let’s say that the leader of a foreign country, one with military or economic interests adverse to the United States, took a look at our 2012 elections and decided to spend millions of dollars in hopes of determining which party held control over the House, the Senate, or the White House. Most of us would consider that scenario highly distressing, to say the least.

Share

“Facebook’s Sheryl Sandberg just hinted that Russian-bought ads could be fair game”

Business Insider:

Facebook Chief Operating Officer Sheryl Sandberg told Axios’ Mike Allen on Thursday that the company would not have removed the political ads purchased by accounts operating out of Russia if they had been posted by real people rather than fake accounts….

Laura Rosenberger, director of the Alliance for Securing Democracy and a senior fellow at The German Marshall Fund of the United States, said Friday that Sandberg’s comments miss the point.

“Foreign governments should not be able to purchase such political ads, period,” she wrote on Twitter, adding that any “loophole” allowing them to buy these ads should be closed.

While it is illegal for a foreign government or entity to spend money on political ads in an attempt to sway a US election, “there is no doubt disagreement over which ads are covered by the prohibition,” said election law and campaign finance expert Rick Hasen.

Share

“Pedro Cortes, Pa. secretary of state, steps down”

Phil. Inquirer:

Pedro Cortes, Pennsylvania’s secretary of state, abruptly resigned from office Wednesday, three weeks after his agency came under criticism for a glitch that may have allowed thousands of ineligible immigrants statewide to vote.

Cortes’ departure was announced in a 349-word “personnel update” emailed from Gov. Wolf’s office that offered no reason and focused almost entirely on his replacement, interim Secretary of State Robert Torres….

As secretary of state, Cortes served as the state’s top election official. His departure comes a week after State Rep. Daryl Metcalfe, chairman of the House State Government Committee, and 15 of his colleagues sent Cortes a letter “to express our dire concerns” about the disclosure three weeks ago that legal resident noncitizens in Pennsylvania had been offered the chance to register to vote while applying for or renewing drivers’ licenses at PennDot service centers.

What a mess.

Share

Ranked Choice Voting Resource Center Posts Webinars

Announcement via email:

Recently the Ranked Choice Voting Resource Center hosted three webinars in the span of two days focused on Usability and RCV. Links to the recordings are now available, along with responses to the tremendous number of questions we received and the handouts provided during the webinars.

 

Designing Ballots for RCV

Recording

Q&A document

Handout: RCV Design Principles and Guidelines Report

 

Voting Systems Capability and RCV


Handouts: 

Implementation of RCV with Multiple Voting Systems

Table of RCV Voting Systems Capability

 

Designing Voter Education & Results Presentation for RCV 


Handouts: RCV Design Principles and Guidelines Report

Share

“We Asked Facebook 12 Questions About the Election, and Got 5 Answers”

NYT.

One of the questions Facebook did not answer:

12.Your advertiser website lists “success stories” of political campaigns that have used Facebook advertising to increase turnout and win elections. Knowing that Facebook could be used to influence election results, why did you not use a United States presidential election as an occasion to build the proper safeguards to make sure that your system was not gamed by foreign or malicious actors?

Share

LAT: Kobach Was Under Consideration to Replace Kelly as Head of Dept of Homeland Security

LAT:

Nielsen, who served as Kelly’s deputy at Homeland Security before following him to the White House, has experience in disaster response and started a consulting firm that gave her extensive expertise in cybersecurity, a top priority for the department.

In picking Nielsen, Trump passed over potential nominees with close ties to administration officials who favor hard-line efforts to restrict both legal and illegal immigration.

Among the people under consideration, according to a former Homeland Security official, were Kris Kobach, the Kansas secretary of state who is heading Trump’s voter fraud commission and who has been a leader in the immigration-restriction movement, and Rep. Lou Barletta (R-Pa.), who launched his political career as an anti-immigration mayor.

The decision to go with Nielsen indicates that Kelly, by recommending a top aide and a Homeland Security veteran, was able to exert more influence than Stephen Miller, Trump’s speechwriter and domestic policy advisor, who has pushed measures to severely restrict immigration.

Share

“Menendez trial: Judge raises serious doubts about government’s case”

Gannett:

The judge overseeing U.S. Sen. Bob Menendez’s federal corruption trial raised serious doubts Wednesday whether a legal theory that prosecutors have relied on to prove their case is still allowed in the wake of a 2016 U.S. Supreme Court decision that narrowed the reach of federal bribery laws, raising the prospect that some of the charges against Menendez could be dismissed.

The judge’s remarks came after the government rested its case against Menendez midday Wednesday, having called more than 30 witnesses to testify over the course of 17 trial days. Defense attorneys then argued that the judge should enter a judgment of acquittal because prosecutors had failed to present enough evidence to prove its case.

U.S. District Court Judge William H. Walls suggested that language in the high court’s opinion overturning the conviction of former Virginia Gov. Bob McDonnell requires prosecutors to show that Menendez, D-Paramus, agreed to do specific official acts on behalf of co-defendant Salomon Melgen, a Florida eye doctor and longtime friend, in exchange for specific gifts or payments.

Share

McConnell’s Spokesperson Backpedals on McConnell Killing Blue Slips for Judges

Following up on this post, HuffPost reports:

Senate Majority Leader Mitch McConnell (R-Ky.) will continue to honor the blue slip rule ― an arcane but hugely consequential Senate tradition that lets lawmakers block a president’s judicial nominees from their home states ― even though a news article suggested he would get rid of it, his spokesman said.

The Weekly Standard reported Wednesday that McConnell said in an interview that Democrats would no longer be allowed to use the rule to deny some of President Donald Trump’s judicial nominees a committee hearing or a vote.

The Senate Judiciary Committee currently requires both home-state senators of a judicial nominee to turn in a blue slip ― literally, a blue piece of paper ― to signal support for moving forward with the nominee. Without blue slips from both senators, the nominee won’t get a hearing and the nomination is effectively dead. Blue slips amount to giving a single senator veto power over a president’s court pick.

In his interview, McConnell said that, from now on, Republicans will treat a blue slip “as simply notification of how you’re going to vote, not as an opportunity to blackball.”

The article’s author, Fred Barnes, wrote that that means the blue slip rule now “won’t be honored at all.”

But McConnell spokesman Don Stewart said McConnell was talking about his own view on blue slips, and was not saying that Republicans won’t uphold the rule anymore.

Share

“20th Century Law Can’t Regulate 21st Century Technology”

Ciara Torres Spelliscy:

As much as fun as it is to beat up on Facebook, the problem lies far deeper than any social media platform, no matter how ubiquitous. Simply put, 20th century law is being used to regulate 21st technology. The source of that law, a Supreme Court ruling in a case called Buckley v. Valeo, is 41 years old. At the time of the decision, Microsoft was nine months old and based in Albuquerque, New Mexico, and the closest forerunner of what is now called the internet wouldn’t be developed for another seven years.

Share

“Obama-linked group asks for temporary injunction against Trump voter commission”

McClatchy:

A group of former Obama Administration lawyers on Wednesday moved for a temporary injunction against President Donald Trump’s voting fraud commission, saying the committee caused an “immediate blow to the proper functioning of our democracy” when it requested voter data from all 50 states without following legally mandated procedures.

The motion, filed in U.S. District Court in Washington, D.C., by Protect Democracy Project and United to Protect Democracy, cited reports of people withdrawing their voter registration in response to the Trump commission’s request for information — proof, the motion argues, that the court should stop the Trump group from collecting the data now before it does more harm.

The motion also argues that the requests “may increase the vulnerability of voter registration systems to hackers” and, contrary to federal law, gives Protect Democracy insufficient time to respond and mobilize the public to its actions.

Share

Conference at Harvard November 8th: Gerrymandering, Redistricting, and American Democracy

Announcement via email:

On November 8, the Ash Center for Democratic Governance and Innovation is holding a day-long conference on “Gerrymandering, Redistricting, and American Democracy”.  As the Supreme Court considers the most important case on political gerrymandering in a generation, join us for a convening of scholars, practitioners, and activists from around the country as we seek to understand a path forward on redistricting reform. Our panelists will provide unique insight into the history of gerrymandering, the role of race in redistricting today, the current crisis of the Census, and will examine the landscape for reform. We also invite you to join us in the evening for a reception and Forum entitled “Redistricting and Representation” at the American Academy of Arts and Sciences.

The conference is free and open to the public, but tickets are required. You can register and receive a ticket via Eventbrite. 

For an updated agenda, please visit our website event page. We’ll be updating this page as new speakers are announced.

Share

Sociologists Respond to Chief Justice Roberts’ Gill Comment About “Sociological Gobbledygook”

Ouch:

Dear Chief Justice John Roberts:

I write today on behalf of the American Sociological Association, the nation’s largest scholarly professional association of sociologists, to respond to a comment you made during oral arguments on Tuesday, October 3rd for the case of Gill v. Whitford. You said: “It may be simply my educational background, but I can only describe it [social science data] as sociological gobbledygook.”

We were pleased to learn that Justices Kagan and Sotomayor subsequently expressed concern about your statement and spoke to the value of social science measures.  In this letter, we provide additional context for understanding the empirical nature of social scientific data and the ways it has served the national interests.

In an era when facts are often dismissed as “fake news,” we are particularly concerned about a person of your stature suggesting to the public that scientific measurement is not valid or reliable and that expertise should not be trusted.  What you call “gobbledygook” is rigorous and empirical.  The following are just a few examples of the contributions of sociological research to American society that our members offered in response to your comment…

Share

Timing is Everything Dep’t: 5th Circuit Denies Request for Initial En Banc Consideration of Texas Voter ID Case

The United States Court of Appeals for the Fifth Circuit has denied a request by opponents of Texas’s strict voter id law to have the state’s appeal of the ruling holding the law illegal and enacted with racially discriminatory purpose heard initially by the entire Fifth Circuit.

Initial en banc consideration is very rare. Plaintiffs likely sought initial en banc review for three reasons: (1) it will speed things up so the issue has a better chance of being resolved before the 2018 elections, as the case will likely end up before the entire fifth circuit no matter what a 3 judge panel of that court will do; (2) plaintiffs won before the en banc court last time; and  (3) the longer things go, the better the chances that more very conservative nominees get confirmed to the 5th Circuit, potentially changing the outcome of a close vote.

The vote against en banc consideration was 4-10 (and we can see which judges supported review from the order: “In the en banc poll, four judges voted in favor of hearing (Judges Jones, Smith, Dennis, and Elrod), and ten judges voted against (Chief Judge Stewart and Judges Jolly, Clement, Prado, Owen, Southwick, Haynes, Graves, Higginson, and Costa).”

Share

Sen. McConnell Says He’s Killing Blue Slips for Judicial Nominees, with Potential to Shift Federal Appeals Courts to Far Right

Weekly Standard:

No longer will “blue slips” be allowed to deny a nominee a Senate Judiciary Committee hearing and vote on confirmation. In the past, senators have sometimes barred a nominee from their state by refusing to return their slip to the committee, thus preventing a hearing and confirmation.

“The majority”—that is, Republicans—will treat a blue slip “as simply notification of how you’re going to vote, not as an opportunity to blackball,” McConnell told me. The use of blue slips, he noted, is not a Senate rule and has “been honored in the breach over the years.” Now it won’t be honored at all.

This is a serious escalation in the judicial wars.

Share

“Senate Democrats worry Russia could jeopardize reelection bids”

Politico:

Democratic senators such as Heidi Heitkamp of North Dakota, Bob Casey of Pennsylvania and Jon Tester of Montana — who hail from states President Donald Trump won in 2016 — know they’re already facing stiff reelection challenges.

Now they’re concerned the Trump administration is dragging its feet on thwarting sophisticated Russian cyber operations that could have significant impact on their races — and could even sway which party wins control of the Senate. The red- and purple-state Democratic seats are top targets for Republicans hoping to expand their two-seat majority in the Senate; Democrats likely would have to hold all of them if they are to have any hope of retaking the chamber.

Share

“Hack-Vulnerable Voting Machines a ‘National Security Threat,’ Experts Warn”

Celeste Katz:

It happened in Las Vegas, but the weaknesses in U.S. voting equipment uncovered during a summer hackathon are too important to stay there, experts say. They’re a matter of national security.

A new report breaks down the lessons learned at the DEF CON 25 hacking conference, which amounted to a concentrated attack—orchestrated in the name of public safety—on the programming and machinery used in U.S. elections….

One of the authors of the report, Joseph Hall of the Center for Democracy & Technology, tweeted a warning against overinterpreting the scope of the threat, if not its urgency.

Responding to one published claim that the Russians could remotely take over the entire U.S. election system, Hall, the center’s chief technologist, decried the “breathless hysteria” of the coverage and remarked, “I wrote a lot of the dang thing, and it doesn’t make a claim like that.”

Share

From Your Mouth to God’s Ears Dept: Pence-Kobach Fraudulent Fraud Squad May Never Meet Again

HuffPost:

A member of President Donald Trump’s voter fraud probe expressed deep frustration Tuesday over the way the commission has been run so far and doubted that the panel would ever meet again.

Even though the Presidential Advisory Commission on Election Integrity was formally created five months ago and has conducted two public meetings, Maine Secretary of State Matthew Dunlap (D) told HuffPost that he still has no idea what it’s working on or when it will meet next. He said he plans to raise concerns with Kansas Secretary of State Kris Kobach (R), the commission’s vice chair, about how it has operated so far ― if he ever has another chance.

“I think we have to talk about that if we get another opportunity. I don’t know that we’re ever going to meet again, to tell you the truth. We certainly haven’t talked about it,” Dunlap said. “I think it is a possibility. We haven’t heard about any future meetings. We talked about a meeting in November ― that was back in July. We haven’t had anything further about it. … It wouldn’t surprise me if we didn’t meet again.”

 

Share

“Of Steak Rubs and Symmetry: A Response to Justice Gorsuch”

A guest post by Chris Elmendorf and Eric McGhee:

During oral argument in Gill v. Whitford, the partisan gerrymandering case, Justice Gorsuch complained that the plaintiffs’ proposed test for unconstitutional gerrymanders was too much like a steak rub: “I like some turmeric, I like a few other little ingredients, but I’m not going to tell you how much of each.” The implication is that adjudicating partisan gerrymandering cases would be like judging a Top Chef contest, with jurists relying on their personal preferences to deem the map at issue yummy or unpalatable.

One of us is the creator of the “efficiency gap,” a measure of partisan gerrymandering that has played an important role in this case. Together we filed an amicus brief that outlined the properties and uses of both the efficiency gap and a variety of other partisan gerrymandering metrics. As such, we have an interest in making sure that the social science of this case is understood and used properly. Although Gorsuch might make an excellent steak rub, we don’t think his metaphor caries well to the evidence or proposed standards in this case.

The metaphor is apt for totality-of-circumstances balancing tests, such as the constitutional test for procedural due process, and, arguably, the test for racial vote dilution under the Voting Rights Act. But the tests on offer for partisan gerrymandering claims—including the plaintiffs’ test, and the test suggested in an influential amicus brief by biostatistician Eric Lander—do not invite or require balancing.

There is, first, an objective, well-defined question to be answered: Is the legislative map substantially asymmetric with respect to the conversion of votes into seats—meaning that each party is likely to receive quite different seat shares for a given share of the vote? To ask whether a map is asymmetric in a partisan gerrymandering case is akin to asking, in a toxic torts case, whether a chemical released in an industrial accident causes cancer. A judge in the torts case might consider epidemiological evidence, lab experiments on mice, and biomechanical studies of cell division. But the question to be answered is not whether these three types of evidence, considered together, show the plaintiffs to be morally deserving of compensation (a steak-rub question). Rather, the question is objective: does the chemical cause cancer?

Similarly, the three measures of partisan symmetry introduced by the plaintiffs in Gill—the Efficiency Gap, Gelman-King bias, and the mean-median difference—each serve to answer the objective question of whether a map of legislative districts yields an asymmetric votes-to-seats curve. The measures are extremely highly correlated in competitive states like Wisconsin. They diverge somewhat in politically lopsided states, but the reason for the divergence is well understood and points to a clear choice among the metrics.

If a legislative map were shown to have substantial asymmetry, then under the plaintiffs’ proposed test, the court would ask whether that degree of asymmetry can be explained by neutral factors, such as the geographic distribution of each party’s supporters. No balancing is involved: the court would not weigh the size of the asymmetry against the likelihood that it arose by chance, or against the weightiness of the state’s official (legitimate) redistricting criteria. Indeed, to minimize judicial discretion at this stage, judges could use redistricting simulations to determine whether the map at issue is an outlier relative to the range of algorithmically generated maps.

Courts applying this approach would eventually have to settle on quantitative thresholds for “substantial” asymmetry, and for “outlier” status relative to simulated maps, but this is no different than what the courts did in malapportionment cases after Reynolds v. Sims. Also, while the plaintiffs in Gill formulated the substantial-asymmetry question as a two-part inquiry into magnitude and durability, these steps could easily be collapsed into one if courts focused on the expected rather than the observed level of asymmetry, where expected asymmetry is an average taken over the range of historically plausible partisan swings.

Ironically, the only serious subjectivity in the plaintiffs’ proposed test lies in the intent prong—whether the map was adopted to benefit the favored political party. This inquiry may turn on a judge’s priors in cases where the legislators worked hard to conceal their motives. The irony is that no one disputes that the intent prong is manageable. Intent tests are ubiquitous in constitutional law. But to the extent that the Supreme Court worries about judges simply voting for their party in gerrymandering cases (or being perceived to do so), the Supreme Court could implement the intent prong via conclusive presumptions based on the composition of the legislature (partisan intent presumed if the advantaged party held a majority of the seats when the map was enacted), or based on the results of computer simulations (partisan intent presumed if the map is an outlier relative to the distribution of simulated maps).

Again, our purpose here is not to argue for any particular outcome for the Wisconsin plan. The Supreme Court must decide whether this gerrymander is too extreme. But the Justices need not worry that the available metrics are too variegated for manageable adjudication. Steak rubs are great at the grill, and perhaps in some cases they should season the law too. But partisan symmetry is not a steak rub concept, and Gill is not a steak rub case.

Share

“How Russia Harvested American Rage to Reshape U.S. Politics”

Today’s must-read:

A New York Times examination of hundreds of those posts shows that one of the most powerful weapons that Russian agents used to reshape American politics was the anger, passion and misinformation that real Americans were broadcasting across social media platforms.

The Russian pages — with names like “Being Patriotic,” “Secured Borders” and “Blacktivist” — cribbed complaints about federal agents from one conservative website, and a gauzy article about a veteran who became an entrepreneur from People magazine. They took descriptions and videos of police beatings from genuine YouTube and Facebook accounts and reposted them, sometimes lightly edited for maximum effect.

Other posts on the Russian pages used stilted language or phrases rarely found in American English. Yet their use of borrowed ideas and arguments from Americans, which were already resonating among conservatives and liberals, demonstrated a deft understanding of the political terrain. The Russians also paid Facebook to promote their posts in the feeds of American Facebook users, helping them test what content would circulate most widely, and among which audiences….

Rather than construct fake grass-roots support behind their ideas — the public relations strategy known as “Astroturfing” — the Russians sought to cultivate and influence real political movements, Mr. Kelly said.

“It isn’t Astroturfing — they’re throwing seeds and fertilizer onto social media,” said Mr. Kelly. “You want to grow it, and infiltrate it so you can shape it a little bit.”

Share

“North Carolina gerrymandering bill pits black judges against other incumbents”

Think Progress:

Many critics of the proposal, including judges, have expressed concerns about the impact on judicial diversity. An analysis by NC Policy Watch reported that judges of color on the district courts are more likely to be “double bunked,” meaning that they are in a new district with another incumbent. The analysis found that 10 of the 12 districts that double-bunk judges are “majority Democrat,” and more than half of all judges of color are pitted against another incumbent.

“This craven attack on our courts illustrates how far an illegally-gerrymandered legislature will go to maintain power and influence,” Melissa Price Kromm, director of North Carolina Voters for Clean Elections, told ThinkProgress.

Share

“Google uncovers Russian-bought ads on YouTube, Gmail and other platforms”

It spreads beyond Facebook:

Google for the first time has uncovered evidence that Russian operatives exploited the company’s platforms in an attempt to interfere in the 2016 election, according to people familiar with the company’s investigation.

The Silicon Valley giant has found that tens of thousands of dollars were spent on ads by Russian agents who aimed to spread disinformation across Google’s many products, which include YouTube, as well as advertising associated with Google search, Gmail, and the company’s DoubleClick ad network, the people said, speaking on condition of anonymity to discuss matters that have not been made public. Google runs the world’s largest online advertising business, and YouTube is the world’s largest online video site.

Share

“Twitter takes down GOP lawmaker’s campaign ad”

And the issues for social media companies around political ads don’t get any easier.  The Hill reports:

Twitter took down a campaign ad from Rep. Marsha Blackburn (R-Tenn.) that referenced “baby body parts,” the congresswoman’s campaign said on Monday. . . .

A Twitter spokesman confirmed that the platform had suspended the promoted advertisement from the campaign’s account, though he emphasized that the original tweet remains up.

Share

“Hacker study: Russia could get into U.S. voting machines”

A Politico preview of the report coming tomorrow from the DEFCON hacker conference in July, about the security of voting machines.

Voting system security is vitally important, and I wish that more attention were paid to the market for and regulation of such systems generally.  But I’ll be interested to see the report itself, the extent to which it describes threats under realistic conditions, and the extent to which it describes solutions under realistic conditions.  As in any public demonstration of a threat, it’s possible to conflate real analysis with stunts – and not all of the recent public messaging about hacking voting machines has been realistic or responsible.

Share

“These Groups Offer to Secure the Next Elections From Hackers”

Fortune has a different scoop from the same report:

Ethical hackers will team up with U.S. governors, academics and others to help prevent election results from being hacked, according to a person familiar with the plan.

The coalition’s members include organizers of the Def Con hacking conference, the National Governors Association, the Center for Internet Security, the Atlantic Council and several universities, said the person, who was not authorized to discuss the alliance ahead of a formal announcement on Tuesday.

Share

“‘Partisan’ Gerrymandering Is Still About Race”

The subhead from ProPublica:

The Wisconsin case before the Supreme Court claims to be about partisanship. But race is a factor in this case and many others nationwide.

A few briefs in Gill (including one on behalf of law professors, and one on behalf of civil rights groups – the latter of which I helped with) attempted to make the point that some cases about partisanship can really be about partisanship (even if voters of different races are involved), and some cases about race can really be about race (even if voters with different partisan preferences are involved) … but that there’s also currently an unhealthy incentive to force a square peg into a round hole because the doctrinal path to claims based on partisanship has been unnecessarily muddy.

Share