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

WSJ:

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

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

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

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

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

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

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

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

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Schedule for Wash U. Election Law Conference

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

Friday, March 22

1:30 to 2:45: Election Law and Race

The Riddle of Race-Based Redistricting

Travis Crum

Reconstruction’s Last Monument

Maureen Edobor

Senior Discussant: Josh Sellers

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

Incitement as Coordination

Nicholas Almendares

Second-Guessing State Courts in Election Cases

Michael Weingartner

Senior Discussant: Carolyn Shapiro

4:30 to 5:45: Keynote Panel

Democracy Unmoored: Populism and the Corruption of Popular Sovereignty

Samuel Issacharoff

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

Michael Kang & Joanna Shepherd

Moderator: Travis Crum

Saturday, March 23

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

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

Michael Morse

Reconstruction and Representation

Michael Olson

Senior Discussant: Abby Wood

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

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

Jacob Eisler

The Democratic Value of “Foreign Interference” in Campaign Finance

John J. Martin

Senior Discussant: Lisa Marshall Manheim

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

New:

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

Executive Summary

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

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

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

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

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

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

Release:

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

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

Read the complaint.

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

Release:

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

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

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

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

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

Zachary Roth:


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

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

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

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

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

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

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

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