“A Way to Eliminate One Form of Russian Election Hacking”

John Porter and Rob Richie:

As revealed in February indictments by Robert Mueller, Russian operatives weaponized an antiquated rule of American democracy: the loophole that allows candidates to win all of a state’s electoral votes with less than 50 percent of the vote. Under our “plurality voting” laws, Donald Trump could win key battlegrounds if anti-Trump voters failed to consolidate behind Hillary Clinton.

The New York Times’ Maggie Haberman tweeted about Mueller’s indictments that a “big aspect of the Russian meddling was encouraging voting for a third-party candidate.” One Russian ad urged progressives to “choose peace” and vote for Green Party nominee Jill Stein as “the only way to take our country back.” The ad declared, “Trust me, it’s not a wasted vote.”

But for those with a preference between Trump and Clinton, it was due to our election method. Democratic consultant David Axelrod commented that “if Russians sought to redirect alienated HRC (Clinton) voters to third parties, as indictment alleges, it was a shrewd ploy.” Indeed, Stein ultimately won more votes than Trump’s victory margins in Michigan, Pennsylvania and Wisconsin, which collectively had enough electoral votes to decide the presidency.

The Russians aren’t alone in manipulating this election method vulnerability. A ProPublica investigation revealed that allies of Democratic Senator Jon Tester in 2012 spent big money to boost a Libertarian as the “real conservative” in Montana. Tester ultimately won by 3.7 percent, with 6.6 percent going to the Libertarian. As Republicans take on Tester this year, a Republican activist has been exposed trying to secure the Green Party nomination to take votes away from Tester.

Such appalling tactics will remain “shrewd” as long as we maintain plurality voting. Fortunately, there’s a proven solution to the “plurality hack”: ranked choice voting. Voters rank their choice of candidates in order of preference, and ballots are counted in a series of “instant runoffs.” If a candidate wins a majority of first choices, that candidate wins, just like in any election. If not, the candidate with the fewest votes is eliminated, and their ballots go to the candidate ranked by the voter next on the ballot. This process continues until a candidate wins a majority.

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Georgia: “Missing hyphens will make it hard for some people to vote in U.S. election”

Reuters:

The tiniest discrepancy on a registration form places them on a “pending” voter list. A Reuters analysis of Georgia’s pending voter list, obtained through a public records request, found that black voters landed on the list at a far higher rate than white voters even though a majority of Georgia’s voters are white.

Both voting rights activists and Georgia’s state government say the reason for this is that blacks more frequently fill out paper forms than whites, who are more likely to do them online. Paper forms are more prone to human error, both sides agree. But they disagree on whether the errors are made by those filling out the forms or officials processing the forms.

Republicans say the aim of the “exact match” law is to prevent voter fraud. Voting rights groups, however, object to the tiniest, inadvertent error creating an obstacle to a person’s fundamental right to vote.

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“Facebook Fallout Deals Blow to Mercers’ Political Clout”

NYT:

Last month, a friend of the wealthy conservative donor Rebekah Mercer arrived at Facebook’s Silicon Valley headquarters. His task: Find out what — if anything — could repair relations between Facebook, the world’s biggest social media company, and Cambridge Analytica, the voter-profiling firm co-founded by her father and used by the Trump campaign.

The revelation last month that Cambridge Analytica improperly acquired the private Facebook data of millions of users has set off government inquiries in Washington and London, plunging Facebook into crisis. But it has also battered the nascent political network overseen by Ms. Mercer, 44, and financed by her father, Robert Mercer, 71, a hard-line conservative billionaire.

Ms. Mercer’s standing in Mr. Trump’s circle had already declined following the departure last year of Stephen K. Bannon, her family’s former adviser and President Trump’s former chief strategist, according to Republicans with close ties to the president’s political operation. A pro-Trump advocacy group controlled by Ms. Mercer has gone silent following strategic disputes between her and other top donors. Plans to wage a civil war against the Republican establishment in the 2018 midterms have been derailed.

And last month, after reports on Cambridge in The New York Times, The Observer of London and The Guardian, Facebook banned the company from its platform, a major blow to any political or commercial targeting firm. Not a single American candidate or “super PAC” committee has reported payments to the company since the 2016 campaign, according to federal records.

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“‘We’ve been disenfranchised’: Republicans in San Juan County say redrawn voter districts unfairly favor Navajos”

Salt Lake Tribune:

“I feel like we’ve been disenfranchised,” said Robert Turk, 57.

It was the shared sentiment Thursday at the first GOP convention in San Juan County since a federal judge redrew the boundaries to give Navajos, who tend to affiliate as Democrats, a significant majority of voters in two of three commission districts and three of five school board seats. The decision was meant to reverse the historic political domination by whites over American Indians.

But it has roiled Monticello and Blanding, the two larger towns here that each has more than 75 percent Anglo populations, where American flags wave from almost every porch, pickup trucks sit in most driveways and pretty much anyone who’s not a tourist wears cowboy boots. The districts, they said, are now unfairly based on race and party.

And federal Judge Robert Shelby, they said, is to blame.

“You mean King Shelby?” asked longtime Blanding resident Al Clarke. “The way these districts came about is just totalitarian.”

“He’s skewed everything in favor of the Democrats,” added Zeb Dalton, 39, still wearing his tan cowboy hat hours after he’d finished work for the day at his cattle ranch….

It was underscored, too, by some racial tension among residents concerned that American Indians living on the Navajo Nation don’t pay property taxes. Lynn Laws, 69, of Blanding, worries about having “two nontaxpaying commissioners telling us how to use our tax money.”

Others suggested Navajo commissioners wouldn’t show up for meetings, wouldn’t allocate funding to white towns, wouldn’t understand how to govern the county.

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Twitter Announces Support for Honest Ads Act—Though It Won’t Help With Much of the Problems with Twitter

 

As with troubling foreign content on Facebook, Twitter’s issues likely won’t be covered by the honest ads act either, because the use of bots etc. to amplify messages would not count as electioneering communications under the act and remain unregulated.

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“Federal complaint alleges Rick Scott’s PAC illegally skirted fundraising restrictions”

Tampa Bay Times:

Less than 24 hours after Rick Scott announced his candidacy for U.S. Senate, he faces a Federal Election Commission complaint accusing him of breaking election laws by raising and spending unlimited campaign donations to prepare for his senate campaign.

Gov. Scott a year ago launched his New Republican PAC, which described its mission as re-branding and re-inventing the Republican Party to help Donald Trump’s agenda, as well as appealing to young and Hispanic voters.

The Democratic leaning group End Citizens United alleges in its new FEC complaint that Scott’s New Republican PAC was merely a means for Scott to skirt federal restrictions on unlimited donations and corporate donations while he put the pieces in place to challenge Democratic U.S. Sen. Bill Nelson. Prospective candidates exploring possible campaigns are supposed to create “testing the waters” committees that must abide by contribution limits of $2,700 per individual.

“(T)he very same day that Scott declared his federal candidacy, the Committee revamped its website, suddenly transforming itself from a committee dedicated to supporting President Trump to one dedicated to supporting Scott. This timing cannot be mere coincidence; instead, Scott and the Committee plainly prearranged this transition,” the complaint states. “Thus it appears as if Scott consented to the Committee spending funds on behalf of his candidacy, triggering candidacy for Scott on a date earlier than the one he declared. But regardless of when he triggered candidacy, it appears as if he has been using the Committee to improperly pay for expenses associated with his exploratory activities and his candidacy for Senate.”

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“White House stands behind Trump voter fraud claims”

The Hill:

White House press secretary Sarah Huckabee Sanders on Monday defended President Trump’s claims about widespread voter fraud in the 2016 election and argued the administration has no evidence to back up the claims because states have refused to cooperate with a federal review.

“The president still strongly feels there was a large amount of voter fraud and attempted to do a thorough review of it. A lot of the states didn’t want to cooperate and participate,” Sanders said.

WaPo: It doesn’t matter how Trump ‘feels’ about voter fraud. He’s wrong.

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“Trump attorney Cohen is being investigated for possible bank fraud, campaign finance violations”

WaPo:

Michael Cohen, the longtime attorney of President Trump, is under federal investigation for possible bank fraud, wire fraud and campaign finance violations, according to three people with knowledge of the case.

FBI agents on Monday raided Cohen’s Manhattan office, home and hotel room as part of the investigation, seizing records about Cohen’s clients and personal finances. Among the records taken were those related to a 2016 payment Cohen made to adult-film star Stormy Daniels, who claims to have had a sexual encounter with Trump, according to a fourth person familiar with the investigation….

Cohen used his Trump Organization email in negotiating the agreement with Davidson and in communicating with his bank about the funds.

In February, after a watchdog group filed a complaint about the payment with the Federal Election Commission, Cohen released a statement saying he “used my own personal funds to facilitate” the payment. He rejected the idea that the payment should have counted as a campaign contribution.

“The payment to Ms. Clifford was lawful, and was not a campaign contribution or a campaign expenditure by anyone,” he said, referring to Daniels’s real name, Stephanie Clifford.

While the timing of the payment — 12 days before the presidential election — might suggest an attempt to influence the outcome, timing is not enough to prove intent, said Rick Hasen, a professor specializing in election law at the University of California at Irvine.

“It would be very difficult to bring one of these cases without some good documentary evidence,” he said. “I think a lot of people are underestimating the hurdles that it takes to bring a criminal prosecution.”

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“Facebook Launches New Initiative to Help Scholars Assess Social Media’s Impact on Elections”

Release:

Today, Facebook is announcing a new initiative to help provide independent, credible research about the role of social media in elections, as well as democracy more generally. It will be funded by the Laura and John Arnold Foundation, Democracy Fund, the William and Flora Hewlett Foundation, the John S. and James L. Knight Foundation, the Charles Koch Foundation, the Omidyar Network, and the Alfred P. Sloan Foundation.

At the heart of this initiative will be a group of scholars who will:

  • Define the research agenda;
  • Solicit proposals for independent research on a range of different topics; and
  • Manage a peer review process to select scholars who will receive funding for their research, as well as access to privacy-protected datasets from Facebook which they can analyze.

Facebook will not have any right to review or approve their research findings prior to publication….

Gary King of Harvard University and Nate Persily of Stanford Law School have been instrumental in developing this innovative model for academic collaboration. You can read more about their model here.

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“Getting Foreign Funds Out of America’s Elections”

Brennan Center:

Getting Foreign Funds Out of America’s Elections

April 6, 2018
 Russia-linked political ads on every major internet platform. The alleged flow of Russian money to the NRA. The Trump campaign’s solicitation of donations from foreign sources. Reports that Robert Mueller is investigating whether Russian oligarchs funneled money into the 2016 campaign. Each of these has broken as a separate news story, but in one important sense, they all belong to one same thread: Our country’s longstanding ban on political spending by foreign actors is in tatters.

This report is the first comprehensive package of campaign finance reforms to address the threat of foreign spending in American elections. It shows that platforms like Facebook, Twitter, and Google are just a few of the many conduits hostile states can use to circumvent the ban on foreign political spending. And it lays out a roadmap that Congress, states and the social media companies can follow to proactively protect the integrity of our democracy from political spending.

Read the introduction

Download the report

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The “Whelan Way:” Ed Whelan’s Bad Faith and Nasty Attack on My Book on Justice Scalia’s Legacy

I believe that the author of a book ordinarily should allow it to speak for itself, and let readers read the book and critiques before making their own determination about the relative merits of the book’s arguments. But Ed Whelan, who has offered a multipart critique of my new book, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, invited me to write a response on Bench Memos and then attacked me for not doing so. When I tried to confirm I could write whatever I wanted in the piece, including the headline (which I shared with him), he refused, saying in a message to me: “Wow. You’ve really lost it. Shall I invite you to come defecate on my living-room floor? If you want to make those deranged charges in the text, fine with me. But readers will take the title (as is common with titles) as being from the editors.”

More than just defending my book (“Let’s see you defend your crap on King v. Burwell,” he wrote), this response provides me with an opportunity to point out Whelan’s nasty modus operandi for attacking opponents: take one small piece of evidence or one statement that is part of a larger point, argue that his opponent lied or was incompetent in relying on the small piece of evidence, read the evidence in the light most favorable to his ideological preference, and then conclude, in the nastiest way possible, that the author’s larger point should be rejected.

Whelan’s methodology is meant to bully his ideological opponents into submission or exhaustion. Well I won’t submit, nor will I offer a point-by-point rebuttal to Whelan’s multipronged attack. Such a response is not worth my time against an opponent who can act as the full time Scalia Reputation Police and attack dog against “liberal judicial activism.” Instead I will illustrate Whelan’s m.o. with two examples, and then conclude with a brief note about how his ideological valence affects his tone and rhetoric.

One argument I make in the book is that it is unclear whether or not Justice Scalia had anti-gay animus, or he was instead taking the position that it is up to each state to decide whether to punish gay sex or allow it, or to allow gay marriage or ban it. I spent five pages of the book (86-91) laying out the arguments on both sides, and I reach no firm conclusions though I think the case Scalia had such animus is plausible. I do point to statements such as Justice Scalia’s statement in 2012 to a gay student at a public event that “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things? I don’t apologize for the things I raise.” On the other hand, I wrote in the book that some observers who believe he lacked gay animus point to “his vote in a 2013 case, Hollingsworth v. Perry, dismissing on technical standing grounds a challenge to a lower court decision holding California’s ban on same-sex marriage unconstitutional. The upshot of Hollingsworth, a 5–4 decision with Scalia in the majority, was to require same-sex marriages in California.”

Scalia also told Jennifer Senior in a 2013 interview when asked about his dissents the gay rights decisions: “Maybe the world is spinning toward a wider acceptance of homosexual rights, and here’s Scalia, standing athwart it.  At least standing athwart it as a constitutional entitlement.” I remarked in the book about that comment that “the ‘at least’ hangs there as a big question mark.” I wasn’t sure where to put Scalia on this question and I made that clear.

Rather than discuss the totality of the circumstances of my case for and against the question, and my attempt to grapple with a difficult subject as evenhandedly has I could, Whelan makes it appear that the entire case hangs on a single phrase in a single Supreme Court dissenting opinion from 2003, Lawrence v. Texas in which, among other things, Justice Scalia wrote about the Supreme Court, the product of a “law profession culture,” “sign[ing] on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” (Whelan’s emphasis.)

Whelan then goes on to offer the incredible argument that even if some people would be offended by the term “homosexual agenda,” Scalia was disparaging it rather than embracing it because he prefaced it with “so-called.” This argument is weak on its own terms. As Joe Patrice observed, Whelan “deserves some credit here for inadvertently driving home yet again the intellectual bankruptcy of a textualist school of interpretation. If conservatives can read that passage and say, ‘Justice Scalia was disparaging the idea of a “homosexual agenda,” it becomes astoundingly difficult to ever take textualism seriously.”

But much more to the point, looking at the whole record of what Justice Scalia has said about gay rights, as chronicled in my book, it is not “reckless hyperbole” as Whelan says to say some of what Scalia wrote was “harsh anti-gay rhetoric.” It is how some ordinary people read Scalia’s words. And in any case, one would incorrectly think from reading Whelan’s piece that my entire case hinged on a single ambiguous snippet from a quote in a single case. It did not.

Now the second example. I devote all of the book’s Chapter 2 to Justice Scalia’s methodology of “textualism,” which requires looking at the ordinary public meaning of statutes at the time a legislature enacted it, subject to the use of certain “canons” or rules of construction that Scalia sometimes deployed to decide statutory cases. I make a number of points in the book: that textualism does not lead to determinate answers in many cases, that it was no more reliable (and could be less reliable) than a look at legislative history, and that Scalia was only a part-time textualist. I devote a great deal of attention to a 1989 Supreme Court case, Green v. Bock Laundry Machine Company, in which Justice Scalia explicitly ignored the plain meaning of the statute because he found the meaning “absurd,” and simply rewrote the statute. I contrast his willingness to rewrite the statute in Bock Laundry with his unwillingness to do so in King v. Burwell, the 2015 Obamacare case about whether people enrolled in health care under federal health care exchanges could be considered in a health care exchange “established by the state.” Scalia’s textualism led him to conclude no. I argue that there was a decent textualist argument put forward by Chief Justice Roberts reading the long statute as a wholein favor of reading it the other way, and more importantly I ask, “Why was Scalia willing to jettison his principles in a relatively unimportant case [Green] but not in such an important one [King]?

Rather than present and critique my broader points about Scalia’s textualism, Whelan says that “[a]mazingly…Hasen nowhere inform[s my] trusting readers” that Scalia “actually supplies an answer” in part of his King dissent where he says that courts can correct technical “misprints” but not substantive “mistakes.” And that a scrivener’s error may be apparent when it “decrees an absurd result.”  Whelan writes: “How could Hasen pose his rhetorical questions yet not even acknowledge, much less engage, Scalia’s answer? I will happily exclude the damning possibility that Hasen deliberately hid Scalia’s answer from his readers. But the remaining alternative — that he was unaware of it or had forgotten about it — is damning in its own way. For what does it say that Hasen would spend ten pages positing a fundamental inconsistency between two of Scalia’s opinions yet not have carefully read one of those opinions? (I’m not contending that Hasen couldn’t muster some sort of response to the passage from Scalia’s King dissent quoted above; the damning point is that he didn’t.)” Elsewhere on Twitter, Whelan says that I “botch[ed]” my “major argument” and engaged in “comical incompetence” for failing to address this point.

Here’s Whelan’s same m.o. Rather than discuss my entire chapter on textualism, and the multitude of my critiques against textualism, Whelan zooms in a single point which he says dooms my entire case. Of course, even if I’m wrong about the contrast of King versus Bock Laundry, it doesn’t doom my many arguments against textualism made in the chapter. For example, I argue that the absurd result canon which Scalia indisputably deployed in Bock Laundry is just a “rabbit out of the hat” solution to deal with hard textualist problems. Scalia cannot defend it well and other textualists have criticized him for using it occasionally. But I’m not wrong and Scalia’s quoted point is inapposite. Neither Scalia nor the other Justices treated the drafting language in Bock Laundry as a scrivener’s error. That claim appears nowhere in Scalia’s concurring opinion. Justice Stevens’ opinion traces exactly how the provision went into the law. It was as much a substantive mistake as the supposed mistake in Burwell.

Finally, a word about Whelan’s use of tone and rhetoric. Unlike his former boss and mentor Justice Scalia, who was talented in writing barbs, Whelan resorts frequently to the ad hominem attack, calling opponents (or their ideas) “stupid” or using other insults. He suggests I must be either lying or incompetent in what I wrote, perhaps “deranged,” rather than engaging in the presumption, which I always begin with, that someone with a different viewpoint is competent and acting in good faith. It is fair to call his approach “nasty.”

And it is a double standard. Consider this point. I devote an entire chapter to Justice Scalia’s tone, and the question whether his lack of civility roughened discourse at the Court and in public. In response, to show other Justices could be caustic (though without going through the entire chapter and more of evidence pointing out how much more caustic Scalia was than his colleagues), Whelan writes: “Hasen quotes Justice Sotomayor’s thuggish statement that ‘There are things he said on the bench where if I had a baseball bat, I might have used it.’ (P. 66.)” Even here, Whelan contorts the statement. Here’s the full context of the quote from the book, which shows it was made in jest: “It was Sonia Sotomayor who perhaps best expressed the ambivalence [about Justice Scalia], saying that Scalia’s death was like losing a family member, but jokingly adding, ‘There are things he said on the bench where if I had a baseball bat, I might have used it.’” I wrote further on page 72 that Justice Ruth Bader “Ginsburg’s statement about Scalia, presaging Sotomayor’s ‘baseball bat’ comment, furthered his image as an incorrigible curmudgeon: ‘I love him. But sometimes I’d like to strangle him.’”

I wrote on Twitter to Whelan in response to this that “I think it is interesting that you describe Justice Sotomayor, the only Latina Justice[,] as making a ‘thuggish’ comment But nary a word about Justice Ginsburg saying, also jokingly, that she’d like to ‘strangle’ Scalia sometimes. [Justice Ginsburg wrote the preface to Whelan’s book].” His response was: “Less clear to me, as arguably much more idiomatic. Plus, bashing someone with a baseball bat seems a paradigm of thuggery.”

I think this says it all—his opponent, the liberal Latina Justice Sotomayor is “thuggish,” while another liberal Justice that he has pecuniary and other reasons not to alienate, was just creative with the English language. Give the benefit of the doubt to one’s friends and attribute the most malevolent motives to one’s enemies. Let’s call this bad faith reading of an opponent’s writings the “Whelan Way.”

Don’t expect another response from me to Whelan’s next inevitable 19-part post. As I said at the beginning, readers should read the book and critiques and judge for themselves, now armed with the knowledge of the Whelan Way.

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George Will column: “There’s no good reason to stop felons from voting”

Will at WaPo:

What compelling government interest is served by felon disenfranchisement? Enhanced public safety? How? Is it to fine-tune the quality of the electorate? This is not a legitimate government objective for elected officials to pursue. A felony conviction is an indelible stain: What intelligent purpose is served by reminding felons — who really do not require reminding — of their past, and by advertising it to their community? The rule of law requires punishments, but it is not served by punishments that never end and that perpetuate a social stigma and a sense of never fully reentering the community.

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“Elections in small Alabama city are unfair to black voters, Legal Defense Fund letter says”

AL.com:

The NAACP Legal Defense Fund is challenging the election process in a suburb of Birmingham, claiming it has kept blacks from being elected to local office and violates the Voting Rights Act of 1965.

In a recent letter to the city of Pleasant Grove, attorneys with the NAACP Legal Defense Fund urged the city to switch from at-large voting to single-winner districts. Under the at-large method, candidates in local races appear on ballots citywide — not in single districts.

Pleasant Grove’s model might be denying black voters, who account for more than 40 percent of the city’s electorate, the opportunity to elect candidates of their choice and fully participate in the political process, Legal Defense Fund attorneys say. The letter calls the at-large election method a violation of the Voting Rights Act.

Pleasant Grove’s City Council is comprised of the mayor and five councilors.

As a result of the at-large method, the city has never elected a black person as mayor or a city councilor. Under the current model, a candidate must receive more than 50 percent of the citywide vote to win.

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(How) Will Facebook Self-Regulate “Issue Ads” Intended to Affect U.S. Elections? The Details Matter a Lot

Via the NY Times comes news that Facebook will not only support passage of the Honest Ads Act (currently pending in committee where it may stay), but will also self-regulate “issue ads.” The self-regulation is important, because it may be that some government regulation in this area is unconstitutional. Still, the details will matter, and it remains to be seen if Facebook will have the interest and patience in coming up with full and effective self-regulation.  I explain why in this post.

Not all ads that the Russian government and others ran in the 2016 elections intended to influence the elections would be governed by federal law barring foreign nationals from spending money in U.S. elections. Those that do not expressly advocate the election or defeat of a candidate are not barred unless they appear on television or radio close to the election and feature the candidate’s name or likeness. So when Russians ran an ad saying “Hillary is a Satan” close to the election it would not be covered. The Honest Ads Act would extend the rules applying to television and radio to digital ads, and so “Hillary is a Satan” would be covered and the Russian government could not pay for such ads close to the election.

But as the Times explains  lots of the Russian ads did not even mention a candidate but were intended to influence the election:

Law enforcement officials say Russian agents, looking to stir discord, posed as Americans with Facebook pages that represented a range of political viewpoints, from “Blacktivist” to “Heart of Texas.”…

The policy builds on an announcement in October that Facebook would start verifying advertisers running “election-related” ads. Critics said that would not capture many of the ads run by Russian agents around the 2016 election, which focused on issues rather than specific elections. One Internet Research Agency ad, for example, featured a Confederate flag and said, “The South will rise again!”

Facebook’s move on Friday would address those issue ads. Most of the Russian ads focused on “divisive political issues like guns, L.G.B.T. rights, immigration and racial issues,” Senator Mark Warner, Democrat of Virginia, said in a statement.

“That’s why today’s announcement by Facebook is so important,” he added.

I explained in pieces in Politico and Slate that it is not clear that the conservative Supreme Court will allow the government to bar foreign spending on issue ads that do not mention a candidate by name. (For the full academic discussion of the relevant constitutional cases and regulations, see my recently published piece, Cheap Speech and What It has Done (to American Democracy), 16 First Amendment Law Review 200, 217-222 (2018)).

But Facebook is not a government actor, and it can choose to exclude these ads if paid for by foreign governments, or require disclosure of them. There’s no First Amendment problem with that at all, but it’s not clear exactly how this will work.

Here’s the relevant part of yesterday’s announcement from Facebook’s Rob Goldman and Alex Himel:

Last October, we announced that only authorized advertisers will be able to run electoral ads on Facebook or Instagram. And today, we’re extending that requirement to anyone that wants to show “issue ads” — like political topics that are being debated across the country. We are working with third parties to develop a list of key issues, which we will refine over time. To get authorized by Facebook, advertisers will need to confirm their identity and location. Advertisers will be prohibited from running political ads — electoral or issue-based — until they are authorized.

In addition, these ads will be clearly labeled in the top left corner as “Political Ad.” Next to it we will show “paid for by” information. We started testing the authorization process this week, and people will begin seeing the label and additional information in the US later this spring…

.We know we were slow to pick-up foreign interference in the 2016 US elections. Today’s updates are designed to prevent future abuse in elections — and to help ensure you have the information that you need to assess political and issue ads, as well as content on Pages. By increasing transparency around ads and Pages on Facebook, we can increase accountability for advertisers — improving our service for everyone.

Here’s a hypothetical to flesh out some issues. Let’s assume that Facebook, working with these third parties, can successfully identify key issues like “Black Lives Matter,” immigration, or gay rights and religious liberties. Suppose an ad comes in from a group formed in the U.S. called “Traditional Values Coalition” or “Progress Now!” running ads on LGBT issues.

  1. Will Facebook require these groups to disclose their donors? What if their donors consist of a series of shell groups, hiding the real identity of the group? How will Facebook know that they’ve figured out who the real donors are?
  2. What happens if Facebook determines that some of the donors are foreign? Will it apply a percentage test?
  3. Will foreign ads simply be subject to disclosure regulation, or will the ads be rejected if from a foreign source even if federal law does not bar the ads (such as “Hillary is a Satan” if the Honest Ads Act does not apply, or LGBT ads if it does apply)?
  4. What if the material is from a media corporation that is a foreign entity, like The Guardian? (Suppose The Guardian editorializes “Don’t vote for Trump.”) if so, how will it decide who counts as the media?

There are many more questions, but Facebook has some difficult decisions to make if it goes ahead with this.

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“An Antidote for Gobbledygook: Organizing the Judge’s Partisan Gerrymandering Toolkit into a Two-Part Test”

Sam Wang and Brian Remlinger have posted this timely draft on SSRN. Here is the abstract:

The Supreme Court appears ready to limit extreme partisan gerrymanders. However, defining “extreme” is a challenging proposition, since individual states differ in their political geography and legal circumstances. Many measurement tools have emerged that probe the questions of whether a redistricting map is extreme, or violates the principle of partisan symmetry. Here we provide a framework for categorizing these tests. Our framework explains how measures should be interpreted and identifies which tests will be most effective, given the specific facts of a particular state. Broadly, the tests can be divided into two categories: those that identify inequality of opportunity, i.e. a systematic deprivation of one side’s ability to elect representatives; and those that identify inequality of outcome, i.e. a durable distortion in the amount of representation. In each case, the baseline for comparison is what would occur under districting processes in which partisan interests are not the overriding consideration. A general thread is that of “significance testing,” in which a district or statewide districting scheme can be defined as more extreme than the great majority of possibilities that could arise incidentally through a districting process driven by criteria other than extreme partisanship. Such tests are most often done with well-established classical statistical tests, but can also include recently-developed measures such as the efficiency gap. Many of these measures can be evaluated by a judge or clerk, with minimal need for reliance on expert witnesses. It is even now possible to evaluate, with mathematical rigor, whether a specific scheme is extreme relative to the virtually uncountable universe of possible maps. Taken together, these methods for detecting extremes comprise a statistical toolbox to address a wide variety of circumstances that may arise in the post-Whitford, post-Benisek environment.

Really looking forward to diving into this when I can get my head above water.

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Big News in Utah John Swallow Case as Court Strikes FEC Regulation on Straw Contributions

Release:

A federal judge today struck down a Federal Election Commission (FEC) regulation expanding liability for contributions made through straw donors.

U.S. District Court Judge Dee Benson ruled that the FEC “exceed[ed] its authority to write regulations and improperly intrud[ed] into the realm of law making that is the exclusive province of Congress.” The ruling also effectively ends the FEC’s litigation against former Utah Attorney General John Swallow.

“The Federal Election Commission’s brazen attempt to supplant Congress was rightly rejected by the court. Unelected commissioners cannot act outside of the law to punish conduct they deem inappropriate. Today’s ruling is a victory for separation of powers and secures the rights of all Americans to discuss and participate in campaign fundraising,” said Institute for Free Speech Legal Director Allen Dickerson.

The FEC alleged that Swallow aided Utah businessman Jeremy Johnson, another defendant in the case, to make illegal contributions through straw donors. But there was no evidence that Swallow made illegal contributions or provided funds for straw contributions by others….

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Federal Court Enters Final Judgment Against Challenger to California Voting Rights Act, Teeing Up Full Appeal to 9th Circuit

Read the district court’s latest order in Higginson v. Becerra.

This is a serious challenge. The challenger’s lawyer is William Consovoy, the lawyer who argued the Evenwel v. Abbott case on one person, one vote at the Supreme Court and one of the new lawyers representing President Trump in an emoluments lawsuit.

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“Trump declares that his voter-fraud conspiracy theory is ‘not a conspiracy theory”

The Fix:

“They always like to say, ‘Oh, that’s a conspiracy theory!’ ” [Trump] continued. “Not a conspiracy theory, folks. Millions and millions of people, and it’s very hard because the state guards their records. They don’t want to see it.”

Millions of people voting illegally? Oh, that’s a conspiracy theory. Or, at least, there is literally no evidence that hundreds of people vote illegally in California or any other state, much less millions. I suppose the underlying theory that Trump embraces is that Democrats conspire to ensure that these millions of votes are cast, making it a conspiracy theory, but that’s beside the point. The point, put as finely and directly as possible, is that Trump’s assertion is nonsense.

But let’s flesh this out a bit.

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“NH Primary Source: Gardner using Interstate Crosscheck System to probe possible NH voter fraud”

WMUR:

 Secretary of State Bill Gardner has been saying for several weeks now that he intends to release new information about potential voter fraud later this spring, when his comprehensive review of registration and voting lists, using the Interstate Voter Registration Crosscheck System, is completed.

Gardner told New Hampshire Primary Source this week that expects his report will provide an estimate of the number of duplicate voters during the 2016 election – that is, people who voted in New Hampshire and also voted in another state or states.

The Interstate Voter Registration Crosscheck Program was created in 2005 by former Kansas Secretary of State Ron Thornburg and election officials in other states. In recent years, it has been administered by the current controversial Kansas secretary of state, Kris Kobach, ostensibly to track down voter fraud. But it has been criticized by researcherscharging that the system produces a huge number of false positives and as such is unreliable.

In 2014, Kobach said that the system was capable of checking the registration records of more than 100 million people.

Gardner said he waited many years before he felt confident enough to recommend that New Hampshire enter the program. But he said this week that he has still reached no definite conclusion about its reliability.

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“Elections Very Small Agency Tackling Very Big Problem of Election Meddling”

Bloomberg BNA:

One of the federal government’s smallest agencies is taking on one of the country’s most pressing problems: foreign meddling in U.S. elections.
The Election Assistance Commission, which has an annual budget of less than $10 million and about 30 employees, wants to quickly distribute the $380 million provided by the fiscal 2018 spending package for security grants to state and local election authorities.
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“EXCLUSIVE: Robert Mercer backed a secretive group that worked with Facebook, Google to target anti-Muslim ads at swing voters”

Great work by Open Secrets:

As the final weeks of the 2016 elections ticked down, voters in swing states like Nevada and North Carolina began seeing eerie promotional travel ads as they scrolled through their Facebook feeds or clicked through Google sites.

In one, a woman with a French accent cheerfully welcomes visitors to the “Islamic State of France,” where “under Sharia law,  you can enjoy everything the Islamic State of France has to offer, as long as you follow the rules.”

The video has a Man in the High Tower feel. Iconic French tourist sites are both familiar and transformed — the Eiffel Tower is capped with a star and crescent and the spires of the Notre Dame are replaced with the domed qubba of a mosque.

The Mona Lisa is shown looking, the ad says, “as a woman should,” covered in a burka.

If it wasn’t already clear that the ad was meant to stoke viewers’ fears of imminent Muslim conquest, the video is interspersed with violent imagery. Three missiles are seen flying through the sky as the video opens. Blindfolded men are shown kneeling with guns pointed at their heads, and children are shown training with weapons “to defend the caliphate.”..

The group, a social welfare organization called Secure America Now, worked hand in hand with Facebook and Google to target their message at voters in swing states who were most likely to be receptive to them.

And new tax documents obtained by OpenSecrets show that the money fueling the group came mostly from just three donors, including the secretive multimillionaire donor Robert Mercer.

As a 501(c)(4) social welfare organization, Secure America Now (SAN) is not required to disclose its donors to the public, but they are required to report them to the IRS. This information is usually redacted when provided for public inspection. However, when OpenSecrets called to request a 2016 return, an unredacted return was provided by the group’s accounting firm.

The filing shows the largest individual contribution, $2 million, came from Robert Mercer, the reclusive hedge fund investor who spent millions in 2016 helping Donald Trump capture the White House.

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“Election Law ‘Federalism’ and the Limits of the Antidiscrimination Framework”

Franita Tolson has posted this draft on SSRN (forthcoming, William and Mary Law Review). Here is the abstract:

If the United States Supreme Court conceived of the right to vote as an active entitlement that safeguards other fundamental rights rather than as a passive privilege that permits courts to prioritize state sovereignty over broad enfranchisement, then many of the errors that have become commonplace in our system of elections would not occur. It is unlikely, however, that the Court will take the steps necessary to extend the constitutional protections afforded to the right to vote. In recent years, the Court has sharply circumscribed Congress’s ability to protect the right to vote under the Fourteenth and Fifteenth Amendments, rejecting any new conceptual framework that would more properly allocate authority over voting rights between the states and the federal government.

Nonetheless, both scholars and voting rights advocates can take advantage of the existing framework by using the Elections Clause to supplement the Reconstruction Amendments in an effort to protect voting rights and defend the scope of federal anti-discrimination legislation. Under the Clause, states set procedural regulations that govern federal elections, but Congress can also enact its own laws and, more importantly, veto state regulations at will. This provision has been significantly underutilized in the two centuries-long battle over the regulation of federal elections.

Despite this unique structure that places final policymaking authority in the hands of Congress, both the Supreme Court and legal scholars tend to discuss the Clause in federalism terms, characterizing the exercise of federal power as a rare and somewhat unwelcome intrusion on the states’ relatively broad authority to legislate with respect to federal elections. Contrary to this view, this Article argues that Congress and the courts can disregard state sovereignty in enacting, enforcing, and resolving the constitutionality of legislation passed pursuant to the Elections Clause. Close examination reveals that the Clause’s structure does not fit comfortably within any of the prevailing theories of federalism, which deploy notions of state sovereignty in ways that are inconsistent with the Clause’s text, purpose, and history.

Descriptively, federalism doctrine fails to explain the regulatory dynamic between the states and Congress over federal elections because the Clause embodies values other than those that our federalist system safeguards. Traditional federalism doctrine emphasizes objectives such as increased citizen involvement, experimentation, and innovation in state government. In contrast, the touchstone of the Elections Clause is the continued existence and political legitimacy of federal elections: that a winner be chosen from an electoral process—implemented by the states at the sufferance of Congress—that is legitimized by clear rules and a definitive outcome. This focus makes it difficult to embrace the state-centric approach of traditional federalism, or the flexibility and nationalism that is the hallmark of the “new” federalism. This insight has significant implications as we approach the 2020 redistricting cycle, in which states will seek to defend discriminatory redistricting plans, enact more restrictive voting laws, and challenge the constitutionality of federal voting rights legislation on federalism grounds.

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Save the Date: 8th Annual Supreme Court Term in Review at UCI Law, July 9

What a lineup!

8th Annual Supreme Court Term in Review

Monday, July 9, 2018, 10:30 a.m.–12:00 p.m. Pacific Time
Irvine Barclay Theatre (Map)

Registration and lobby doors open at 9:30 a.m.
Seating begins at 10:00 a.m.

Registration and RSVP will open June 1, 2018

This exciting and entertaining program reviews the Supreme Court’s key cases decided in the October 2017 term, with an all-star panel of Supreme Court practitioners, journalists, and academics.

Recap of last year’s event in video, photos, news & social media >

Panelists

Viewers may submit questions via Twitter (@UCILaw or @rickhasen), using the hash tag #ucilawscotus at the end of your question.

This event is approved for 1.5 hours of Minimum Continuing Legal Education Credit by the State Bar of California.
UC Irvine School of Law is a State Bar-approved MCLE provider.

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Florida: “Gov. Scott appeals judge’s ruling on voting rights for felons”

Tampa Bay Times:

Gov. Rick Scott is appealing a federal judge’s ruling that he must come up with a new way to restore voting rights to felons.

“People elected by Floridians should determine Florida’s clemency rules for convicted criminals, not federal judges,” Scott spokesman John Tupps said in a statement. “This process has been in place for decades and is outlined in the both the U.S. and Florida Constitutions.”

Scott and his fellow Cabinet members were given an April 26 deadline to figure out a better way for felons who have completed their sentences to be allowed to vote.

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“Keynote Address: Judging the Political and Political Judging: Justice Scalia as Case Study”

I have posted this draft on SSRN (forthcoming: Chicago-Kent Law Review). Here is the abstract:

This Address builds upon ideas first presented in Richard L. Hasen, After Scalia: The Future of United States Election Law, 17 AMERIKA HŌ 1 (Koji Higashikawa trans., 2017) (Japan), and RICHARD L. HASEN, THE JUSTICE OF CONTRADICTIONS: ANTONIN SCALIA AND THE POLITICS OF DISRUPTION (2018). It is a revised version of a Keynote Address delivered at “The Supreme Court and American Politics,” a symposium held October 17, 2017 at the Chicago-Kent College of Law.

It considers through the lens of Justice Scalia’s opinions the role that views of the political process play, at least rhetorically, in how Supreme Court Justices decide cases. It focuses on Justice Scalia’s contradictory views on self-dealing and incumbency protection across a range of cases, comparing campaign finance, on the one hand, to partisan gerrymandering, voter identification laws, political patronage, and ballot access rules on the other. In this context, I argue that the defects in the political process he sometimes flagged appeared to do little work, and that his decisions are better understood by his ideological commitments to what Chicago-Kent Professor Steven Heyman calls “conservative libertarianism.”[1] Scalia’s views on self-dealing appeared to reflect rather than drive his legal analysis.

Part II describes Justice Scalia’s contradictory approaches on questions of self-dealing and incumbency. Part III argues that, the contradictions lined up with the Justice’s ideological and partisan commitments, and that this is hardly unique to Justice Scalia. Finally, Part IV offers three lessons to be learned from this case study for the interaction of the Court, the political branches, and election law.

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Did Justice Scalia Display Anti-Gay Animus?

Ed Whelan, defender of all things Scalia and author of the “This Day in Liberal Judicial Activism” feature on National Review, is in the midst of a multi-post critique of my book (herehere and here).

I’m still mulling whether to take up Ed’s offer to potentially post a response on Bench Memos (my inclination is to let the book speak for itself), but I did want to take up a topic that Ed raises in his latest post: Whether Scalia had anti-gay animus. Ed writes:

Hasen contends that Scalia’s dissent in Lawrence v. Texas (2003) was “full of language seen as strongly anti-gay.” (P. 88 (emphasis added).) But there are many folks who seem to find it empowering to see things, or at least to feign to see things, that don’t exist. Here’s the supposedly deeply offensive passage from Lawrence:

Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.

What Hasen and others overlook is that the adjective “so-called” operates to disparage the label “homosexual agenda.” So far from embracing that label, Scalia is distancing himself from it. (If Scalia had instead written that the justices in the majority had “joined forces with the so-called gay-rights movement,” his critics would surely have complained about that phrase.) In other words, while the phrase “the so-called homosexual agenda” may well have been ill-advised (if only because it gave some folks a predictable if weak excuse to rant), it’s reckless hyperbole to characterize it as “harsh anti-gay rhetoric.”

I struggled a lot in the book about how to understand whether Scalia had anti-gay animus, and I discuss the issue in detail on pages 86-91 of the book. But given Ed’s selective reading, I would point readers to this passage on page 90, which notes that in 2012, at a book event at Princeton, he was confronted by a gay student who said he was offended by Scalia’s statements in earlier cases comparing homosexual acts to bestiality and murder. Justice Scalia responded: “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things? I don’t apologize for the things I raise.”

I’d also point to these two tweets which shows how comments like “homosexual agenda” are treated by those in the LGBT community:

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“Issue One and Campaign Legal Center file IRS complaint against major ‘dark money’ group”

Release:

Today, Issue One and the Campaign Legal Center called on the Internal Revenue Service (IRS) to enforce penalties against Americans for Job Security — one of the top spenders of political “dark money” in recent years — for failing to file three years’ worth of mandatory tax returns. For this, Americans for Job Security could be punished with the loss of its tax-exempt status as well as monetary fines.

A tax-exempt business league under Section 501(c)(6) of the tax code, Americans for Job Security has spent more than $20 million on political ads that overtly called for the election or defeat of federal candidates since the U.S. Supreme Court’s Citizens United v. Federal Election Commission decision in 2010.

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