“Democrat On Trump Voter Fraud Probe Slams Voting Restriction Efforts”


A Democratic member of President Donald Trump’s commission to investigate voter fraud issued some of the strongest criticism yet from within the panel on efforts to make it more difficult to vote.

In a lengthy statement to the commission, Alan King, a Democratic probate judge in Alabama, criticized overzealous efforts to purge people from the voter rolls. In his statement, King wrote that while there may be some people who voted twice, there were thousands more who were removed from the rolls for no reason or had their vote suppressed. King won’t be attending the panel’s Tuesday meeting in Manchester, New Hampshire, because of a scheduling conflict, he told commission organizers.

“The reality is that the less affluent in our society are more prone to move and more prone to have a diminished economic position in life, just to survive. But that does not mean that officials in government should ‘game the system’ to deprive the less affluent from voting, simply because they may have moved from one election to another only to be stricken from the active voter list,” he wrote.


“I Ran Digital For A 2016 Presidential Campaign. Here’s What Russia Might Have Got For $100,000”

Kevin Bingle:

One common response to the news that a Kremlin-linked online operation in Russia bought $100,000 worth of Facebook ads during the 2016 election campaign has been that the money is a drop in the bucket relative to the more than $1 billion spent on ads during the cycle, or the $27 billion in revenue earned by Facebook last year.

But as one of a handful of Americans who managed the digital operations of a 2016 presidential campaign, I think $100,000 smartly spent on Facebook could have a much larger reach than you may realize. And more importantly, nobody — not the political pros, or the advertising gurus — truly knows how far a message spreads when Facebook is paid to promote it. The social network still contains many mysteries, even to those pouring millions into it.

What I do know, from managing the digital operations for Gov. John Kasich’s campaign, is how the game was played in 2016. So how much impact would $100,000 of advertising have on Facebook during the cycle? The short answer is…that completely depends on how large the targeted audience was, and how long the campaigns were running.


“Virginia scraps touch-screen voting machines as election for governor looms”


Concerned about potential hacking two months away from the state’s closely watched gubernatorial election, Virginia’s state Board of Elections voted Friday to replace any touchscreen voting machines before November’s elections.

The three-member board voted unanimously to decertify Direct Recording Electronic voting machines, acting partly out of concern that their security had been compromised at DefCon, an annual hack-a-thon held in July in Las Vegas. The machines do not produce a paper trail, which the department described as an important security feature….

Ahead of the vote, state elections officials laid out concerns about the machines in a report, which noted vulnerability exposed and exacerbated by hackers at DefCon.

“DefCon, an annual conference of hackers, promoted the ‘Voting Machine Hacking Village’ at which multiple voting machines, mostly DREs, were made available,” it said. “Multiple types of DREs, some of which are currently in use in Virginia, were hacked according to public reports from DefCon. Additional troubling reports from DefCon were publicized, including one that expressly stated the password for a DRE that was in use in the Commonwealth, and one that indicated that some DREs in use have a single password shared by all machines from an individual vendor.”


Oops Dept: “Two NC Republicans say they accidentally asked the Supreme Court to end gerrymandering”

News and Observer:

Two of the three North Carolina lawmakers who had joined with prominent national politicians to oppose gerrymandering have now backtracked, saying they didn’t mean to add their names on an anti-gerrymandering letter sent to the Supreme Court.

Rep. Mark Meadows and Rep. Walter Jones, both Republicans, signed on to the legal briefalong with Democratic Rep. David Price.

Meadows blamed an “error” and Jones blamed “miscommunication” for their participation. Meadows also made a point to say he supports the N.C. General Assembly, which is in charge of drawing the state’s lines for its members of Congress.


Today’s Must-Read: “Analysis: Heritage Foundation’s Database Undermines Claims of Recent Voter Fraud”

The Brennan Center comes through with tedious but very important debunking work:

The Presidential Advisory Commission on Election Integrity relies on a database produced by the Heritage Foundation to justify baseless claims — by President Trump and some of the panel’s members — of rampant voter fraud. But according to an analysis of the database by the Brennan Center for Justice at NYU School of Law, the numbers in the database reveal exactly the opposite.

Claims that the database contains almost 1,100 proven instances of voter fraud are grossly exaggerated and devoid of context, according to Heritage Fraud Database: An Assessment. It confirms what numerous studies have consistently shown: Voter fraud is vanishingly rare, and impersonating a voter at the polls is less common a phenomenon than being struck by lightning.

“The database includes an assortment of cases, many unrelated or tangentially related, going back decades, with only a handful pertaining to non-citizens voting or impersonation at the polls,” writes the author. “They add up to a molecular fraction of the total votes cast nationwide. Inadvertently, the Heritage Foundation’s database undermines its claim of widespread voter fraud.

A closer examination of the database shows:

  • Among the examples in the Heritage document are a case from 1948 (when Harry S. Truman beat Thomas Dewey) and a case from 1972 (when Richard Nixon defeated George McGovern). Only 105 of its 749 cases came from within the past five years.

  • In reviewing billions of votes cast, the Heritage Foundation identified just 10 cases involving in-person impersonation fraud at the polls (fewer than the number of members on the president’s Commission).

  • The database includes only 41 cases involving non-citizens registering, voting, or attempting to vote over five decades, highlighting the absurdity of President Trump’s claim that millions of non-citizens voted in the 2016 election alone.

  • A vast majority of fraud “examples” cited by the Heritage Foundation would not be addressed by the voter suppression laws its staff supports, including “Election Integrity” Commission member Hans von Spakovsky, a senior legal fellow at Heritage. Von Spakovsky distributed copies of the database at the panel’s first meeting in July.

  • Many cases highlighted in the database show that existing laws and safeguards are already preventing voter fraud — the ineligible voters or individuals engaging in misconduct were discovered and prevented from casting a ballot.


Breaking: Challengers in Texas Voter ID Case Seek 5th Circuit En Banc Review of Stay Order and Full Review of Case

The other day I reported that a 5th Circuit motions panel, on a 2-1 vote, allowed Texas to enforce its revised voter id law pending appeal in the case. The court did this even though the trial court found Texas engaged in intentional racial discrimination, which should allow for a fuller remedy in the case.

Today the challengers asked the full 5th Circuit to reverse that decision.  The vote will be a good test for what is likely to happen on the merits when this case, almost inevitably, makes it back before the full 5th Circuit on the merits.

Update: Josh Blackman points out that it is not clear that stays are subject to en banc review in the Fifth Circuit. But the ruling is also seeking full initial en banc review of the merits decision.

[This post has been updated.]


“Virginia moves to eliminate voting machines considered top hacking target”

Good news via Politico:

Virginia’s election office on Friday urged the state’s election supervisors to prohibit touchscreen voting machines before November’s elections, saying the devices posed unacceptable digital risks.

If approved, the move would represent one of the most dramatic actions taken to help secure elections since a 2016 presidential race rife with concerns about digital meddling and vote tampering. Election security experts have long warned that such machines are a top target for hackers.



“Kobach Discovers College Students Live in College Towns”

Jonathan Brater for the Brennan Center:

Despite his claims that he won’t “pre-judge” the findings of the Trump “Voter Fraud” Commission of which he is the vice-chair and public face, Kansas Secretary of State Kris Kobach is already inserting misleading claims into the public dialogue ahead of the Commission’s next meeting in New Hampshire. Specifically, he says there must have been voter fraud in New Hampshire because people registered to vote with out-of-state driver’s licenses (which is legal), and some still do not have a New Hampshire license or car registration. From this alone, he claims the election was tainted because these people must not have been eligible to vote in New Hampshire (he also purports to be able to divine which candidate they voted for).

It’s worth noting that Kobach is basically recycling the same misleading claim he made after the election, when he suggested there was widespread voter fraud in New Hampshire because of the mere fact that people registering on election day used out of state licenses. But this is completely legal, and commonplace, especially for college students, who probably comprised the majority of these voters. A typical example would be someone who lived in Massachusetts and got a driver’s license at 16, moved to New Hampshire for college at 18, and registered to vote in New Hampshire.

But now, Kobach is making hay out of the fact that of the 6,540 individuals who registered with out of state IDs, 5,313 of them had not gotten a New Hampshire driver’s license or registered a car there as of August. From this alone, he claims there is “proof” they never were “bona fide residents” of New Hampshire and voted illegally. Philip Bump has already pointed out some of the flaws in this logic, but it’s worth explaining at least three reasons the claim is completely bogus:…


“Russian Facebook Political Ad Buys During 2016 Election Draw DOJ & FEC Complaints”


Today Common Cause filed a complaint with the U.S. Department of Justice (DOJ) and the Federal Election Commission (FEC) alleging that one or more unknown foreign nationals made expenditures, independent expenditures or disbursements in connection with the 2016 presidential election in violation of the Federal Election Campaign Act. …

To read the DOJ complaint, click here.

To read the FEC complaint, click here.


“Kris Kobach’s leap of logic on voter fraud in New Hampshire should be disqualifying”

Philip Bump:

Kobach is the co-chairman of the Presidential Advisory Commission on Election Integrity, alongside the vice president of the United States. He is running a federal investigation into the integrity of the voting system — and he cites college kids at Dartmouth as “proof” that Hillary Clinton actually lost the state. His commission, in fact, could ask New Hampshire for the data to investigate these 5,000 cases itself, at which point Kobach could inform the public about whether or not fraud had been proven. Instead he riffed on a Washington Times article.


“Election Integrity Commission members accuse New Hampshire voters of fraud”

Weigel for WaPo:

Kobach apparently made no attempt to contact voters who’d cast ballots but held out-of-state IDs. Thursday night, The Washington Post asked voters who’d done so to tell their stories; three did so within 60 minutes — college students, who were living in New Hampshire but did not change their licenses……

It’s possible that thousands of other New Hampshire college students voted the same way; the ability of temporary residents to swing close elections has been controversial in the state for years, as Democrats go through the same biennial battle to drive up turnout on campuses.

“Apparently, Kobach is saying that voting should be limited to people who drive cars,” said David Becker, director of the Center for Election Innovation. “He’s basically saying Bill Gardner, New Hampshire’s secretary of state — his colleague — is incompetent. And he’s doing it without a basis.”


“Undue Burdens and Potential Opportunities in Voting Rights and Abortion Law”

Pam Karlan has posted this draft on SSRN (forthcoming, Indiana Law Journal). Here is the abstract:

This essay explores two areas of law that at first blush might seem relatively disconnected from one another: voting rights and reproductive justice.

Many years ago, I joked about one aspect of that connection: “Redistricting, like reproduction, combines lofty goals, deep passions about identity and instincts for self-preservation, increasing reliance on technology, and often a need to ‘pull [and] haul’ rather indelicately at the very end. And of course, it often involves somebody getting screwed.” But the connection between them is actually more profound — and potentially more promising.

First, a citizen’s right to vote and a woman’s right to decide whether to terminate a pregnancy share a distinctive structure: they are rights-creating and stereoscopic. That is, they enable the exercise of other rights and lie at the intersection of the liberty and equality values expressed by the Fourteenth Amendment.

Second, these rights have undergone a similar doctrinal evolution over the last half-century, as the Supreme Court first ratcheted up and then relaxed the level of judicial scrutiny. Both are now subject to an undue burden standard. While that doctrinal retrenchment has rightly been subject to withering criticism, in recent cases courts have begun to analyze burdens in ways that take into account the interaction between the challenged restrictions and socioeconomic disadvantage.

The emerging, more muscular understanding of undue burden allows us an opportunity, within the confines of current constitutional doctrine, to talk about how economic inequality and poverty undermine constitutional values of self-determination, liberty, and equality.


“A Vote Is a Terrible Thing to Waste”


Breitbart was the Senate Democrats’ point man for redistricting. But though he grew up in a Democratic household and still identifies with its values, he’s not exactly fond of his native political party.

“Legislative redistricting in New York isn’t a question of Democrats versus Republicans — it’s more like Bolsheviks versus Mensheviks,” he said. “The two majority parties combine to preserve their interests as majorities against the minorities in their respective houses.”

In evoking the factional split in the early Soviet Union, Breitbart isn’t suggesting Democrats and Republicans are like two different types of Communists. He’s saying that both parties are like Bolsheviks in that they’re so dedicated to majority rule in one house – the Democrats in the Assembly and the Republicans in the Senate — that they’ll sacrifice many members to permanent minority, or Menshevik, status in the other house. (Although that beats imprisonment, exile and execution, which the Bolsheviks wreaked upon the Mensheviks.)


“FEC Might Act on Russia-Linked Facebook Political Ads: Official”

Bloomberg BNA:

The revelation that Russian sources financed political ads on Facebook in the 2016 presidential campaign could prompt enforcement action by the Federal Election Commission, agency Vice Chairwoman Caroline Hunter said.
“It’s something we can and should deal with in the enforcement process,” Hunter said Sept. 7, noting that federal campaign finance rules bar the use of foreign campaign money to influence U.S. elections. She said she couldn’t comment further on details of the Facebook matter because anything that might come before the FEC as an enforcement case is covered by strict confidentiality rules.
The details of the Facebook matter could be crucial, however, Hunter suggested. She said FEC rules exempt “pure issue speech” from coverage under campaign finance law.

“Data on Out-of-State IDs Fuels Cries of ‘Fraud’ in 2016 Election”


A newly released report from the New Hampshire Secretary of State and Department of Safety says a majority of people who used out-of-state IDs to register in last November’s elections haven’t registered vehicles in New Hampshire or gotten in-state drivers licenses in the months since. While this data alone doesn’t provide proof of voter fraud, as NHPR has noted before, it’s quickly become fodder in an ongoing debate about New Hampshire’s voting requirements….

Within hours of the report’s release, Kansas Secretary of State Kris Kobach penned a Breitbart column pointing to the data as evidence that “a pivotal, close election [the U.S. Senate Race between Kelly Ayotte and Maggie Hassan] was likely changed through voter fraud.” Kobach is co-chair of the Trump administration’s Presidential Advisory Commission on Election Integrity, which is meeting in New Hampshire next week and of which New Hampshire Secretary of State Bill Gardner is a member.

Gardner, in an interview Thursday evening, said he hadn’t yet read Kobach’s column. But, Gardner said, “I’ll certainly talk to him about it next week.”

When asked if he had any reason to doubt the legitimacy of last year’s election outcome, Gardner replied: “No.”


“The California Voter Experience Study: A Statewide Survey of Voter Perspectives on Vote-By-Mail and Vote Centers”

California Civic Engagement Project:

In 2016, nearly 58% of ballots cast in the general election were Vote-by-Mail (VBM) ballots-up from 27% in 2002. Encouraged by this rising usage, some counties are now planning to expand access to VBM balloting, and are making plans to switch to a new Vote Center Model. This new model provides for all registered voters in a participating county to be mailed a VBM ballot while, at the same time, also replacing neighborhood polling places with Voter Centers.
The CCEP’s new statewide survey research examines California voters’ use of VBM and their perceptions of the Vote Center Model. The findings identify some of the opportunities and challenges that may arise when switching to a Vote Center Model, particularly for electorally underrepresented populations. This research will help inform implementation strategies by election officials and community leaders as they work together in their planning for a new election model.
Highlights include:
  • A majority of Californians (61%) do not like the idea of Vote Centers replacing neighborhood polling places.
  • 71% of polling place voters did not like the idea of Vote Centers, compared to 53% of Vote-By-Mail voters who did not like it.
  • Younger voters were more receptive to the idea of a Vote Center – 36% of voters age 18-29 were receptive to the idea of Vote Centers, versus 25% of voters age 65 older.
  • 66% of California voters are willing to travel only 15 minutes or less to get to a Vote Center, regardless of their mode of transportation.
  • Just over a quarter of voters who do not typically use the U.S. Postal Service (USPS) to mail a VBM ballot, said they did not trust the USPS to get their ballot delivered safely, or in time to be counted.

Issacharoff and Grossman: ACLU: Partisan Gerrymandering Undermines the Integrity of Elections, Violates Right to Cast a Meaningful Ballot

The following is a guest post from Sam Issacharoff and Perry Grossman who worked on this amicus brief in the Whitford case:

In his concurrence in Vieth v. Jubilirer, Justice Kennedy suggested that the First Amendment provides a “sounder and more prudential basis” for judicial intervention in partisan gerrymandering “than does the Equal Protection Clause.”  Our amicus brief on behalf of the ACLU and its affiliates takes up Justice Kennedy’s invitation by providing a First Amendment approach grounded in the principle of government neutrality in regulating private expression in the public domain.  Although the state may speak on its own behalf as a participant in the marketplace of ideas, it can’t fix marketplace rules to ensure its preferred viewpoints prevail over popular competition.  This neutrality principle takes on special force in the democratic process, particularly in the area of election administration, where self-dealing by the government can undermine the competitive mechanisms essential to electoral accountability to shifting voter preferences.

Not every limitation on the right to vote requires judicial intervention. Some burdens on the franchise are unavoidable.  The Court has held that some partisan considerations are inherent and permissible in the apportionment process.  But some burdens so alter the nature of the franchise that they deny a citizen’s inalienable right to full and effective participation in the political process.  Where a state uses its apportionment power to enact a map designed to resist changes in voter preference in order to award its preferred political party a legislative monopoly, it impairs the integrity of the democratic process.  The crux of our First Amendment argument is that a  redistricting plan that disables the competitive mechanism that gives elections legitimacy debases voters’ rights to cast a meaningful ballot and to associate for political purposes.

To address this harm, we propose a burden-shifting approach generally applied to challenges to government discrimination on the basis of political activity.  Like the district court, our burden shifting approach asks separately about the legislative intent behind a redistricting plan and the effect of that plan.  The intent prong considers whether the state drew its redistricting plan to entrench its preferred party in office.  This prong considers classic evidence of legislative intent that has factored into other redistricting cases—contemporaneous statements, political history, erratic procedures, and irregular district shapes.  The effects prong has long presented a more complicated question, but we found a ready analog in pattern-or-practice cases under the civil rights laws.  To determine whether an apportionment plan gives effect to a state’s intent to entrench, we propose that courts inquire whether a challenged map significantly deviates from the state’s normal range of partisan balance in favor of the state’s preferred party in a way that will endure any likely electoral outcome.  Like the pattern-or-practice cases, our standard is suited to considering empirical evidence within the framework of a “totality of the circumstances” approach.  This approach sets a discernible threshold for establishing a prima facie case, but gives district courts latitude to exercise their role as finders of fact and to consider both existing and emerging methods of analysis as well as probative qualitative evidence.

A key feature of this proposed standard is that the burden-shifting does not end the trial court’s inquiry, but instead only provides the predicate for demanding that a state provide a legitimate basis for its map—as the district court did here.  This approach offers both the parties and the court manageable but meaningful burdens of production in trying partisan gerrymandering cases.  First, the standard does not require plaintiffs to present irrefutably dispositive empirical evidence to establish a prima facie case, only sufficient, cumulative evidence to compel justification. Second, the standard only requires defendants to offer legitimate, rather than compelling, justifications for a challenged plan—although the plan must be necessary to advance those legitimate interests.  And third, the standard is sufficiently clear and demanding to deter unmeritorious cases and to provide courts with guideposts for assessing liability that are well-defined but not rigid.


“Election officials criticize Harvard study of voter registration vulnerabilities”


Election officials are pushing back against a new Harvard study saying hackers could disenfranchise Americans in 35 states and the District of Columbia by exploiting vulnerabilities in online voter registration systems.

The study published Wednesday in the journal Technology Sciencesays hackers could buy — either from commercial data brokers or more cheaply from cybercriminals — all the personal data they need about millions of Americans to fraudulently alter voter registration records online. Calling it “voter identity theft,” journal Editor-in-Chief Latanya Sweeney, who is also a Harvard professor, and co-authors Ji Su Yoo and Jinyan Zang say a broad scale attack on several states could be carried out with data costing just a few thousand dollars.

But state elections officials told CyberScoop the report was overblown. “The study doesn’t reflect the safeguards that the states have in place to guard against this sort of thing,” said Indiana Secretary of State Connie Lawson, this year’s president of the National Association of Secretaries of State, or NASS. “I’m disappointed that a Harvard professor would put out such a study with incomplete research and inaccuracies like that.”…

“The vast majority of states mentioned in the report already do the things [the authors] recommend [as mitigations] and take security measures … to  prevent bulk changes to voter records,” said Judd Choate, elections director for Colorado and president of NASED.

He noted that the vulnerabilities highlighted — essentially that someone with enough personal data could impersonate a voter and change their registration record — had nothing to do with the online availability of the process but were inherent in any system of voter self-registration.

Similar identity theft issues also exist with paper registration through the mail, Choate added.

See also this statement from the BPC’s John Fortier and Matt Weil.


“The Fake Americans Russia Created to Influence the Election”


An investigation by The New York Times, and new research from the cybersecurity firm FireEye, reveals some of the mechanisms by which suspected Russian operators used Twitter and Facebook to spread anti-Clinton messages and promote the hacked material they had leaked. On Wednesday, Facebook officials disclosed that they had shut down several hundred accounts that they believe were created by a Russian company linked to the Kremlin and used to buy $100,000 in ads pushing divisive issues during and after the American election campaign.

On Twitter, as on Facebook, Russian fingerprints are on hundreds or thousands of fake accounts that regularly posted anti-Clinton messages. Many were automated Twitter accounts, called bots, that sometimes fired off identical messages seconds apart — and in the exact alphabetical order of their made-up names, according to the FireEye researchers. On Election Day, for instance, they found that one group of Twitter bots sent out the hashtag #WarAgainstDemocrats more than 1,700 times.

The Russian efforts were sometimes crude or off-key, with a trial-and-error feel, and many of the suspect posts were not widely shared. The fakery may have added only modestly to the din of genuine American voices in the pre-election melee, but it helped fuel a fire of anger and suspicion in a polarized country.

Given the powerful role of social media in political contests, understanding the Russian efforts will be crucial in preventing or blunting similar, or more sophisticated, attacks in the 2018 congressional races and the 2020 presidential election. Multiple government agencies have investigated the Russian attack, though it remains unclear whether any agency is focused specifically on tracking foreign intervention in social media. Both Facebook and Twitter say they are studying the 2016 experience and how to defend against such meddling.


“Ventura faces threat of voting rights suit”

VC Star:

In some parts of Ventura, Latinos make up eight in 10 residents. Yet there is no Latino elected official and you’d be hard pressed to find the last one who served on the City Council.

That population concentration and lack of representation may be sufficient to show Ventura is in violation of the California Voting Rights Act.

That’s the view of attorney Robert Rubin, who sent a letter to city officials on behalf of several minority residents, alleging the city’s election practices dilute the political power of underrepresented groups.


Trump Jr. Appears to Acknowledge He Knew Meeting with Russians to Get “Dirt” on Clinton Raised Legal Questions


Donald Trump Jr. told Senate investigators on Thursday that he set up a June 2016 meeting with a Russian lawyer because he was intrigued that she might have damaging information about Hillary Clinton, saying it was important to learn about Mrs. Clinton’s “fitness” to be president.

But nothing came of the Trump Tower meeting, he said, and he was adamant that he never colluded with the Russian government’s campaign to disrupt last year’s presidential election.

In a prepared statement during an interview with Senate Judiciary Committee investigators, the younger Mr. Trump said he was initially conflicted when he heard that the lawyer, Natalia Veselnitskaya, might have damaging information about Mrs. Clinton. Despite his interest, he said, he always intended to consult with his own lawyers about the propriety of using any information that Ms. Veselnitskaya, who has ties to the Kremlin, gave him at the meeting.

A copy of Mr. Trump’s statement was obtained by The New York Times.

The acknowledgment by the president’s eldest son that he intended to seek legal counsel after the meeting suggests that he knew, or at least suspected, that accepting potentially damaging information about a rival campaign from a foreign country raised thorny legal issues.

This goes to the question Andy Grewal raised about whether Trump Jr. displayed enough wilfullness to be criminally liable for any campaign finance violations.


“Republicans split over gerrymandering case headed to Supreme Court”

Bob Barnes for WaPo:

A long list of prominent Republicans is urging the Supreme Court to find that extreme partisan gerrymandering is unconstitutional, saying the practice of drawing electoral lines to benefit one party or another is detrimental to democracy.

It puts those Republicans on opposing sides from groups such as the Republican National Committee and the party’s congressional campaign committee, which are supporting Wisconsin’s GOP-led legislature in a major high court case to be heard next month.


“Voting vulnerability: Study points to potential fraud in online voting registration systems”


Online attackers may be able to purchase – for as little as a few thousand dollars – enough personal information to potentially alter voter registration information in as many as 35 states and the District of Columbia, according to a new Harvard study.

One tactic, researchers said, would be to simply change voters’ addresses, making it appear – to poll workers at least – as though they were voting at the wrong location. Those voters might be forced to cast provisional ballots, which in many circumstances are not counted. The study is described in a September 6 paper published in the Journal of Technology Science.



“Top Civil Rights Nominee Won’t Refute Trump Falsehood About Illegal Voting in 2016”

Pema Levy for Mother Jones:

Recent events loomed over the hearing. Dreiband faced questions about the violence in Charlottesville, which the division is investigating, and the rise of hate crimes. He was also asked about voting rights, amid moves by the Trump administration to crack down on voter fraud and potentially make it harder for many people, particularly minorities, to vote. Asked whether he agreed with Trump that millions of fraudulent ballots were cast in the 2016 elections, Dreiband answered simply that he was “unaware of the data about voter fraud in the United States.”


Full List of Amicus Briefs Supporting Challengers in Wisconsin Partisan Gerrymandering Case

My list yesterday was partial.  I believe this is the full list:

Amicus Briefs in Support of Appellees 


Judge Posner Says He Plans to Manage His Cat’s Campaign for President in 2020

Chicago Daily Law Bulletin:

In his e-mail, Posner wrote leaving the bench opens the way for him to assist Pixie, a Maine Coon cat who succeeded the late Dinah.

Pixie intends to run for president in 2020, Posner wrote in the e-mail.

As a judge, he clarified, he could not manage or otherwise participate in Pixie’s bid last year for the highest office in the land. Pixie lost to real estate mogul Trump, despite writers at the Above The Law blog endorsing the cat.

Posner plans to take a leading role in Pixie’s 2020 campaign.

“I am optimistic that by then the public will be fed up with human presidential candidates, whether named Trump or Clinton,” he wrote.


Would Russian Paid Facebook Ads to Help Elect Trump Be Illegal?

Today’s news reveals that Facebook got money, likely from sources connected to the Russian government, to spend ads likely intended to benefit Trump’s election.  Is this illegal?

The issue is complicated and below I reproduce a footnote from my Cheap Speech paper spelling out some of the particulars.  But here are the basics:

  1. Federal law makes it illegal for a foreign individual, entity, or government to pay for ads independently expressly advocating the election or defeat of a candidate (e.g., Vote for Smith). If any Facebook ads did that, it is illegal.
  2. Federal law makes it illegal for a foreign individual, entity or government to contribute to a U.S. candidate campaign/party.  Spending money in coordination with a campaign counts as a contribution. So if a campaign told the Russian entity where/who/when/how to place the ads, that would be illegal, even if the ads did not contain express advocacy. That seems to be the next question for investigators: how would the Russians know where to target the ads?
  3. The more difficult question is whether federal law prohibits, and if so if it is constitutional to prohibit, spending on elections that do not expressly advocate the election or defeat of a candidate (and don’t count as tv/radio electioneering communications) if those ads are intended to influence the outcome of the election. If the Facebook ads just riled up people on guns but did not mention Trump for example, but were intended to help Trump get elected, can those be illegal? That’s the harder question.

For those wanting more, the footnote is below the fold:

Continue reading


“Facebook says it sold political ads to Russian company during 2016 election”


Representatives of Facebook told congressional investigators Wednesday that it has discovered it sold ads during the U.S. presidential election to a shadowy Russian company seeking to target voters, according to several people familiar with the company’s findings.

Facebook officials reported that they traced the ad sales, totaling $100,000, to a Russian “troll farm” with a history of pushing pro-Kremlin propaganda, these people said.

A small portion of the ads, which began in the summer of 2015, directly named Republican nominee Donald Trump and Democrat Hillary Clinton, the people said. Most of the ads focused on pumping politically divisive issues such as gun rights and immigration fears, as well as gay rights and racial discrimination.

The acknowledgment by Facebook comes as congressional investigators and special counsel Robert Mueller are probing Russian interference in the U.S. election, including allegations that the Kremlin may have coordinated with the Trump campaign.

This is a big deal. I address the legality and danger of this Russian interference in my Cheap Speech paper.


“Exclusive: First look at paper-ballot machines that Georgia is testing”


The test of the system, demonstrated exclusively Tuesday for The Atlanta Journal-Constitution and WSB-TV, came as early voters in Conyers will begin Oct. 16 to use the ballots along with new electronic record, voting and tabulating machines ahead of a Nov. 7 election for mayor and two City Council seats.

If all goes as planned, it’s the first time voters — excluding absentee voters — will have cast ballots on a system with a paper component since 2008. Back then, officials attached paper spools for a local election on some of the state’s existing electronic voting machines but decided the process was too cumbersome to proceed.

It also sets the stage for conversations at the state Capitol about how Georgia can transition away from the aging election system it currently uses. The state last overhauled its system in 2002, at a cost of at least $54 million, when it committed to the now-familiar touch-screen electronic voting machines that millions of voters here still use today.

At the same time, it eliminated a paper trail of recorded votes — something election experts now warn against.


“Civil Rights Groups File Lawsuit Challenging Removal of Voters from New York Poll Books”


The Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee), together with LatinoJustice PRLDEF and the law firm of Dechert LLP, filed suit in federal court in New York on Wednesday on behalf of Common Cause New York to restore the voting rights of millions of New Yorkers ahead of the 2018 election.

The suit against the New York State Board of Elections alleges that certain eligible but “inactive” voters are improperly removed from poll books throughout New York State in violation of the National Voter Registration Act (NVRA).  This causes the disenfranchisement of New Yorkers who are incorrectly told by poll workers that they are not eligible to vote or forced to vote an affidavit ballot rather than a regular ballot.  The NVRA, however, precludes removal of eligible voters from the voting rolls unless they fail to respond to a postcard from election officials seeking to verify their address and also fail to vote in two consecutive federal election cycles.


“Prominent Republicans Urge Supreme Court to End Gerrymandering”

Adam Liptak for the NYT:

Breaking ranks with many of their fellow Republicans, a group of prominent politicians filed briefs on Tuesday urging the Supreme Court to rule that extreme political gerrymandering — the drawing of voting districts to give lopsided advantages to the party in power — violates the Constitution.

The briefs were signed by Republicans including Senator John McCain of Arizona; Gov. John R. Kasich of Ohio; Bob Dole, the former Republican Senate leader from Kansas and the party’s 1996 presidential nominee; the former senators John C. Danforth of Missouri, Richard G. Lugar of Indiana and Alan K. Simpson of Wyoming; and Arnold Schwarzenegger, a former governor of California.

“Partisan gerrymandering has become a tool for powerful interests to distort the democratic process,” reads a brief filed by Mr. McCain and Senator Sheldon Whitehouse, Democrat of Rhode Island.

The Supreme Court will hear arguments in the case, Gill v. Whitford, No. 16-1161, on Oct. 3.


“Reapportionment, Nonapportionment, and Recovering Some Lost History of One-Person, One Vote”

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

The Constitution requires a decennial “Enumeration” of the U.S. population, following which seats in the House of Representatives are apportioned among the states “according to their respective Numbers.” Congress has enacted a default provision that makes this reapportionment essentially automatic.

It was not always so. The post-2020 round of reapportionment will mark the centennial of the most striking episode in the history of American reapportionment: Congress’s failure, for an entire decade, to reallocate seats in light of the census results. The reasons for this failure, and the consequences of Congress’s ultimate response, continue to shape our politics.

Historians and political scientists have written excellent studies of apportionment that address the nonapportionment post-1920. But none of these studies approaches the question from the perspective of legal doctrine. This essay aims to fill that space. It begins by describing the constitutional structure of apportionment, the questions the Constitution left open, and how those questions were resolved prior to 1920. It then turns to what happened in the 1920s and why. Finally, it explores the judicial response to the 1929 solution and describes how that response set the stage for the Reapportionment Revolution of the 1960s, which imposed a constitutional requirement of equipopulous congressional districts. Along the way, it recovers the lost history of earlier, congressional attempts to require population equality. The story is interesting in its own right, but I also suggest ways in which the upcoming redistricting will occur in a context with striking similarities to the context a century before.


“Congress Can Help Prevent Election Hacking”

Michael Chertoff oped in the WSJ:

American voters received yet another rude awakening last month. Chicago’s Board of Elections reported that names, addresses, birth dates and other sensitive information about the city’s 1.8 million registered voters had been exposed on an Amazon cloud server for an unknown period. Worse, it appears hackers might have gained access to employees’ personal accounts at Election Systems & Software, a major election technology vendor—info that could be used to hack a future U.S. election.

Earlier, the Department of Homeland Security reported that foreign agents targeted voting systems in 21 states in the 2016 election, and Bloomberg News reported that hackers had successfully compromised various election-technology companies.

In an age of unprecedented cyber risks, these dangers aren’t surprising. But lawmakers and election officials’ lackadaisical response is both staggering and distressing.