“In high-stakes election, Georgia’s voting system vulnerable to cyberattack”

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AJC:

Headed into one of the most consequential elections in the state’s history, Georgia’s new electronic voting system is vulnerable to cyberattacks that could undermine public confidence, create chaos at the polls or even manipulate the results on Election Day.

Computer scientists, voting-rights activists, U.S. intelligence agencies and a federal judge have repeatedly warned of security deficiencies in Georgia’s system and in electronic voting in general. But state officials have dismissed their concerns as merely “opining on potential risks.”

Instead, an investigation by The Atlanta Journal-Constitution shows, Secretary of State Brad Raffensperger’s office weakened the system’s defenses, disabling password protections on a key component that controls who is allowed to vote.

In addition, days before early voting began on Oct. 12, Raffensperger’s office pushed out new software to each of the state’s 30,000 voting machines through hundreds of thumb drives that experts say are prone to infection with malware.

And what state officials describe as a feature of the new system actually masks a vulnerability.

Officials tell voters to verify their selections on a paper ballot before feeding it into an optical scanner. But the scanner doesn’t record the text that voters see; rather, it reads an unencrypted quick response, or QR, barcode that is indecipherable to the human eye. Either by tampering with individual voting machines or by infiltrating the state’s central elections server, hackers could systematically alter the barcodes to change votes.

Georgia’s Secretary of State is not happy with the story.

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“‘There is a voter-suppression wing’: An ugly American tradition clouds the 2020 presidential race”

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L.A. Times:

A Memphis, Tenn., poll worker turned away people wearing Black Lives Matter T-shirts, saying they couldn’t vote. Robocalls warned thousands of Michigan residents that mail-in voting could put their personal information in the hands of debt collectors and police. In Georgia, officials cut polling places by nearly 10%, even as the number of voters surged by nearly 2 million.

The long American tradition of threatening voting access — often for Black people and Latinos — has dramatically resurfaced in 2020, this time buttressed by a record-setting wave of litigation and an embattled president whose reelection campaign is built around a strategy of sowing doubt and confusion.

Voting rights activists depict the fights against expanding voter access as a last-ditch effort by President Trump and his allies to disenfranchise citizens who tend to favor Democrats. The administration insists — despite no evidence of a widespread problem — that it must enforce restrictions to prevent voter fraud.

“We have an incredibly polarized country and we have a political party whose leader thinks it’s to the party’s advantage to make it harder for people to register to vote and to vote,” said Richard L. Hasen, a UC Irvine law professor and authority on voting. “So that is where we are.”

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“He Fought For Voting Rights In Georgia, Then He Was Locked Up”

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Johnny Kauffman for WABE:

Tariq Baiyina has lobbied politicians, shaken hands with governors, set up a college program, and delivered dozens of sermons. Despite all this, the 42-year-old has never voted. And the reason is simple: since 2002, when he was convicted of a felony, he hasn’t been allowed.

Felony disenfranchisement has become commonplace in the US, where 5.2 million people can’t vote, according to a new estimate from the Sentencing Project. While dozens of countries allow all people held in prison to vote, only two states Vermont and Maine — as well as Washington, D.C, do so in the US.  And in some states people lose their voting rights even after they’ve been released. In Georgia, where Baiyina was convicted, for example, the ban lasts through probation and parole, which can extend decades after serving time.

Black Americans, like Baiyina, are about 3.7 times as likely to lose their voting eligibility than other adults. But as the country begins to confront head-on issues of racism and inequality, more states are scaling back felony disenfranchisement. Earlier this year, Iowa became the final state to lift what had been a lifetime ban.  In Florida, voters in 2018 approved a referendum restoring eligibility to people who are off probation or parole, though it was quickly dismantled by Republicans.

When Baiyina was convicted nearly two decades ago of armed robbery and carjacking, he wasn’t thinking about how people elected to run the government might affect his life, but soon he would become part of that movement, fighting to win power for himself and others punished by the legal system. In a few years, he would grow into a leading voice against felony disenfranchisement in Georgia. And for Baiyina, the cause is about more than just winning influence over who writes laws, it’s a personal quest to escape lingering punishment, and find citizenship. A quest that his own mistakes could quickly, and dramatically, interrupt.

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Kansas: “Secret recording: O’Donnell, Capps, Clendenin plot how to get away with Whipple smear”

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Wichita Eagle:

A secret recording released Friday shows that three Republican officials sought to frame the county’s Republican chairman for a falsified ad they put together smearing then-mayoral candidate Brandon Whipple. One compared their mission to that of the man who shot Wichita abortion provider Dr. George Tiller.

“Us Republicans, we all agree,” Sedgwick County Commissioner Michael O’Donnell said. “The murder of George Tiller was bad. But am I sad that he’s dead? No. I’m just glad I’m not the one who pulled the trigger.”

Tiller was assassinated in 2009 by anti-abortion extremist Scott Roeder during a Sunday morning service while Tiller was serving as an usher at Reformation Lutheran Church in Wichita.

State Rep. Michael Capps said the anti-Whipple video was justifiable to derail Whipple’s candidacy, because he’s a “liberal Democrat.”

“It’s what we do,” Capps said. “It’s the way the system works. Nobody wants to know how the sausage is made, they only want the sausage when it’s done. And that’s the principle: This is the sausage making — nobody likes to see that.”

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“Facebook Seeks Shutdown of NYU Research Project Into Political Ad Targeting”

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WSJ:

Facebook is demanding that a New York University research project cease collecting data about its political-ad targeting practices, setting up a fight with academics seeking to study the platform without the company’s permission.

The dispute involves the NYU Ad Observatory, a project launched last month by the university’s engineering school that has recruited more than 6,500 volunteers to use a specially designed browser extension to collect data about the political ads Facebook shows them.

In a letter sent Oct. 16 to the researchers behind the NYU Ad Observatory, Facebook said the project violates provisions in its terms of service that prohibit bulk data collection from its site.

“Scraping tools, no matter how well-intentioned, are not a permissible means of collecting information from us,” said the letter, written by a Facebook privacy policy official, Allison Hendrix. If the university doesn’t end the project and delete the data it has collected, she wrote, “you may be subject to additional enforcement action.”

The clash between the social-media giant and a major research university comes at a time of heightened scrutiny over political advertising on social media ahead of next month’s U.S. election. Facebook in recent weeks has said it would bar new political ads ahead of Election Day and suspend all political ads indefinitely that evening to prevent the spread of paid misinformation about the election outcome.

Following a furor about the opaque nature of political advertising in the 2016 presidential campaign, Facebook launched an archive of advertisements that run on its platform, with information such as who paid for an ad, when it ran and the geographic location of people who saw it. But that library excludes information about the targeting that determines who sees the ads.

The researchers behind the NYU Ad Observatory said they wanted to provide journalists, researchers, policy makers, and others with the ability to search political ads by state and contest to see what messages are targeted to specific audiences and how those ads are funded.

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“Court defeat for Trump boosts chances of avoiding election disaster”

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Greg Sargent:

We’ve spent so many months worrying about a disastrous election day — due to President Trump’s corrupt designs or other factors such as mail backlogs — that it’s hard to contemplate the possibility that it might come off more smoothly than we expect.

But that more hopeful outcome got a bit more plausible on Friday, when the Pennsylvania Supreme Court issued a ruling that mail ballots can’t be rejected due to a failure to meet signature matching requirements.

Greg links to two #ELB blog posts. Just search for the words “complicated technical reasons” LOL.

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“A Nonprofit With Ties to Democrats Is Sending Out Millions of Ballot Applications. Election Officials Wish It Would Stop.”

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ProPublica:

Gerry Cohen had already voted, dropping off his state-issued ballot at his local post office, by the time the unsolicited mail ballot applications started showing up at his house in early September. The first one or two didn’t bother him. Cohen knows elections: He teaches election law at Duke University and is a Democratic member of the Board of Elections in Wake County, North Carolina. Sending applications directly to voters is “a good public service,” he said.

But Cohen has received at least seven unsolicited mail ballot applications since he voted — not from the state or county, but from the same get-out-the-vote group. “It’s extremely disruptive and reaches the level of a disinformation campaign,” Cohen said. “I think seven is malicious.”

The applications were from the Washington, D.C.-based Center for Voter Information, which, along with its sister organization, the Voter Participation Center, is conducting a massive campaign to register voters and promote mail-in voting. The nonprofits aim to send 340 million pieces of mail this election cycle, with a focus on two dozen key states. The groups describe themselves as nonpartisan, but they were founded by a former Democratic operative, and the organization has spent at least $47,142 this cycle to promote former Vice President Joe Biden’s presidential bid and $40,065 supporting other Democrats, according to public filings.

Election officials say CVI has made a host of mistakes that have buried their offices in unnecessary paperwork and swamped them with calls from voters. Mailers from groups like CVI, which can be mistaken for official documents sent by state or local governments, are confusing voters at a time when states are racing to expand voting by mail during a pandemic, according to election officials from both parties. President Donald Trump has stoked fears of voter fraud by citing CVI’s activities.

As states ramp up mail-in voting, CVI and other direct-mail groups across the country are causing friction by tackling responsibilities that traditionally belong to the government: the sending of ballot applications and other election-related materials. Alabama’s secretary of state warned residents in early October against using unofficial voter registration forms from a group called Election Mail Service, a project of a Texas public benefit corporation called Civitech. Ohio and North Carolina officials have also put out public statements about unsolicited registration forms from Civitech, some of which were prefilled with incorrect names, addresses and other personal information.

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“A Court Fight Is Brewing Over A Ballot Slip-Up Affecting 29K Pittsburgh-Area Voters”

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TPM:

Republicans have gone to federal court to make it easier for them to challenge the ballots of nearly 29,000 Pittsburgh-area voters who were caught up in ballot-sending flub in recent weeks.

The court fight stems from a mail vendor screw-up that resulted in 28,879 Allegheny County voters being sent the wrong ballots. Election officials have since sent those voters the correct ballots, and have created a process to prevent those voters from having their votes counted twice if they send both of the ballots back in. 

But two GOP U.S. House candidates filed a federal lawsuit earlier this month arguing the county’s approach to the blunder violates their constitutional rights. They’ve asked the court to order that any ballot cast by the nearly 29,000 affected voters be automatically treated as “challenged” — a designation that could subject the ballot to an onerous process in order to be counted — and that the court waive the $10-per-ballot fee the candidates would usually face to file challenges. …

At a hearing Friday morning, U.S. District Judge J. Nicholas Ranjan urged Republicans and Allegheny County to work out an agreement over the weekend that would avoid a court fight while the election was underway or right after.

Both sides ultimately said they’d give such a discussion a shot, but Allegheny County lawyer Andrew Szefi stressed that the county officials were already extremely busy managing the current election.

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“Trump campaign, Nevada Republicans sue to stop Clark County mail vote counting until ‘proper procedures’ in place” [Update: Judge Denies Temporary Restraining Order]

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Nevada Independent:

The Trump campaign and Nevada Republican Party filed a lawsuit Friday requesting a pause in Clark County’s mail ballot counting until “proper procedures” for “meaningful observation” are in place.

The lawsuit — filed in Carson City District Court — names Secretary of State Barbara Cegavske, a Republican, and Joseph Gloria, Clark County’s Registrar of Voters, as the defendants. Fred Kraus, a registered voter in Clark County and volunteer poll watcher, is listed as a plaintiff in addition to the Trump campaign and Nevada GOP.

Kraus appears to be a former vice president and general counsel at the Venetian, a casino and resort property owned by GOP mega-donor Sheldon Adelson.

The lawsuit asks the judge to temporarily block ballot-counting procedures in populous Clark County until a “meaningful” poll and ballot-counting observation plan can be put in place by state election officials — a potentially major hitch in county plans to process the record number of mail votes expected to be cast in the 2020 election. Election officials are allowed to process mail ballots within 15 days of the election, which ensures a more rapid accounting of vote totals on Election Day after polls close and for any potential issues with a mail ballot to be addressed, or “cured” ahead of actual Election Day.

Update:

The same day the Trump campaign and Nevada Republican Party filed a lawsuit seeking to halt mail ballot counting in Clark County, a judge denied their request for a temporary restraining order.

That doesn’t mean the legal battle is over, though. Carson City District Court Judge James Wilson has scheduled an evidentiary hearing for Wednesday morning.

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“In two political battlegrounds, thousands of mail-in ballots are on the verge of being rejected”

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Herron & Smith:

Tens of millions of Americans have already cast their ballots for the 2020 election by mail, building on a historic shift in voting methods that started with primary elections held during the COVID-19 pandemic.

Mail-in ballots, however, aren’t automatically accepted as in-person ballots are. Rather, they can be rejected if they have signature defects on their return envelopes. Unless cured by voters – which means that voters fix the signature errors on them – these submitted ballots will be rejected.

Thanks to ongoing reporting of voter turnout in two battleground states, Florida and North Carolina, we can identify the number of mail-in ballots at risk of being rejected. So far, we can tell that there are thousands of ballots flagged for rejection in these two states. In addition, racial minorities and Democrats are disproportionately more likely to have cast mail ballots this election that face rejection

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“U.S. Businesses Say One Thing on Climate Change, But Their Campaign Giving Says Another”

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Bloomberg:

Bloomberg Green examined political donations by businesses in the S&P 100 and the U.S.-based members of the Climate Action 100, a group representing the world’s largest corporate contributors to climate change. For every dollar these corporations gave to one of the most climate-friendly members of Congress during this election cycle, they gave $1.84—nearly twice as much—to an ardent obstructionist of proactive climate policy.

This pattern of giving more to candidates who do less for the climate comes as polls show voters are more concerned about climate change than ever before, and it stands in contrast to the bold claims many of these companies make about themselves and their products.

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“I wanted to make doubly sure my Florida vote counted, so I did it in person. Nervously.”

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Here’s the start:

Monday, Oct. 19, 2 a.m.: I’m so overactivated, I can’t sleep. I want to vote during the first hour of the first day of early voting here in surprisingly purple mid-South Florida. I have to vote ASAP, I suppose out of the same paranoid sense of urgency that made me decide to surrender my absentee ballot at the polling place and vote in person.

I can count on one hand the number of times I’ve left this apartment since covid-19 arrived, and those were to see the dentist and keep my car’s battery from dying. I probably won’t be the only youngish senior there today, in this town full of retirement communities. First, we were told to mail our ballots in really early, but then, thanks to the postmaster general’s boss, the USPS started to look sketchy. I’m hoping there won’t be too many people arriving to vote in person at 6:30, in the pitch dark.

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Pennsylvania Supreme Court, Relying Solely on Plain Meaning of Elections Code, Rejects Use of Signature Matching as Basis to Reject Mail In Ballots; Any Appeal to U.S. Supreme Court Unlikely to Succeed

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The court was unanimous in its result (with all but one justice joining in the reasoning). Note that because this ruling relies upon the court’s interpretation of the plain meaning of the elections code, it would be very hard to take this case to the Supreme Court under the “independent state legislature” doctrine that was at play in the last PA case (when the PA court relied on the state Constitution against the legislative statute).

Republicans cannot argue to the U.S. Supreme Court that the state Supreme Court incorrectly interpreted the state statute (that’s not within the authority of the US Supreme Court to say). Any argument to the US Supreme Court in a case like this would have to argue that the Equal Protection or Due Process Clause requires signature matching, assumedly on grounds that without such matching there would be fraud. I think that would be a very tough argument to make in the U.S. Supreme Court.

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Important Amicus Brief on Scope of Twenty-Sixth Amendment in Texas Voting Case

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I’ve followed closely the work of Yael Bromberg on the scope of the 26th Amendment, which, like the 19th Amendment, has been vastly underutilized as a tool to promote voting rights.

This amicus brief from the Andrew Goodman Foundation, Equal Citizens, and Common Cause lays out the argument for the Supreme Court to take up this issue in a more serious way than we’ve seen in the federal appeals courts.

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“What global elections have taught Silicon Valley about misinformation”

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Politico:

The swift action Twitter and Facebook took to stifle an unverified New York Post article and the crushing political pressure that forced them to reverse course illustrate a key reality: With just weeks until the U.S. election, tech giants have yet to sort out their misinformation problems.

That hasn’t just been a challenge in the U.S., moreover. Silicon Valley’s social media stalwarts have faced misinformation woes in elections all around the globe since 2016, prompting them to revamp their policies on content moderation or invent new ones, entirely, in response to emerging threats and political demands.

“It’s always an election year on Twitter — we are a global service and our decisions reflect that,” Twitter’s vice president of public policy for the Americas, Jessica Herrera-Flanigan, told POLITICO this summer. “We take the learnings from every recent election around the world and use them to improve our election integrity work.”

The New York Post incident elicited partisan howling last week, which led the companies to rethink how they handle content tied to hacked materials. Ultimately, they changed policies that had been put in place to avoid a repeat of 2016, when emails that were stolen and leaked as part of a Russian interference campaign rocked the race.

Other rules are also in flux. Earlier this month, Facebook announced a moratorium on all political advertising in the period after Election Day, despite CEO Mark Zuckerberg’s previous pledge not to make any further election-related policy changes. Google imposed a narrower, post-election ban on its advertising platforms, as well.

And this week, Twitter revamped its process for how users across the globe retweet a post, prompting them to add their own commentary or insight as a way to mitigate the mindless spread of election-related misinformation with a single click.

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“N. Carolina GOP asks Supreme Court to roll back extra time for accepting mail-in ballots”

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Pete Williams for NBC News:

Republicans in the presidential battleground state of North Carolina asked the Supreme Court on Thursday to block lower court rulings that allowed six extra days to accept ballots sent by mail.

The Trump campaign, the state and national Republican parties and Republican leaders of the state Legislature said decisions by North Carolina’s Board of Elections, upheld by federal courts, “pose an immediate threat to the integrity of the federal elections process.”

The board changed the mail ballot deadline from Nov. 6, which the Legislature set in June, to Nov. 12. A federal district judge refused to block the change, and so did the 4th U.S. Circuit Court of Appeals.

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Iranian Video of Purported Hack into State Voter Registration Database Appears to Be Staged

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Analysis from EIP:

This week has seen a flurry of activity related to potential voter suppression, starting with the sending of threatening emails, purportedly from the Proud Boys, to voters in several states; the release of a video purporting to show the hacking of voter registration databases; and finally the attribution of this activity to the Islamic Republic of Iran by the United States Government.

In addition to their announcement of Iranian involvement, the FBI also announced that both Russian and Iranian actors had separately obtained US voter information. The reporting of this activity has raised many questions, and we will use this post to outline what we know and what we suspect about these incidents.

The key takeaways:

  • The technical evidence supports the assertion that the “Proud Boys” were not responsible for sending the initial threatening emails.
  • The video purporting to show a live attack against a voter database was very likely staged.
  • The voter data contained in that video appears to be legitimate, but could have been obtained in a variety of ways.
  • The implication from the video — that there is widespread voter fraud powered by stolen voting data — is false.
  • Our team noticed a mistake in redaction in the video and reported this to the authorities. This mistake has led to the discovery of a large number of potential other systems used by this actor.
  • We cannot provide independent attribution to the Islamic Republic of Iran.
  • This incident raises important issues about the practices of states around voter rolls, particularly Alaska. 
  • This campaign is intended to decrease voter confidence in U.S. electoral processes. There is no evidence of the wide-scale compromise or fraud that these actors claim to show….
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“Talks collapse on a deal to let Pa. counties open mail ballots before Election Day”

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Spotlight PA:

Negotiations between the Republican-led legislature and Gov. Tom Wolf to let counties begin opening mail ballots in Pennsylvania before Election Day appeared to collapse Wednesday, setting up a potential nightmare scenario that some fear could leave the state counting millions of ballots for days after Nov. 3.

The Democratic governor and legislative leaders had been negotiating behind closed doors as recently as Tuesday to change the election code after months of inaction. But the General Assembly adjourned Wednesday and is not scheduled to reconvene until Nov. 10, a week after the election.

In adjourning, Republicans turned away pleas from county elections officials across the state, who said allowing them to open ballots before Election Day would reduce staffing strain and administrative headaches on top of whatever issues they’re dealing with during in-person voting.

Without a deal, the days-long process of counting mail ballots can’t begin until 7 a.m. on Election Day, potentially leaving the results unclear for days and opening room for candidates to falsely declare victory. Still, Pennsylvania’s top election official said Monday she’s confident the “overwhelming majority” of ballots would be counted by the Friday after Nov. 3.

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“Why Conservatives Should Back State Voting Rights Acts”

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Chris Elmendorf at City Journal:

Now comes a new threat, or so it may seem: the state VRA. Much as states in the 1970s copied and extended federal environmental laws, left-leaning states such as California, Washington, and Oregon are enacting their own versions of the Voting Rights Act, filling gaps and patching the weaknesses of the federal law. A particularly audacious bill is pending in New York.

Yet conservatives should see state VRAs not as a threat but as an opportunity. The state VRA is—or rather, can be—a statutory lever to accomplish a variety of worthy goals, including dismantling off-cycle elections, which grossly amplify the political power of public-sector unions and antidevelopment homeowners; negating the most objectionable feature of the federal VRA, namely, its privileging of single-member-district elections; and even providing conservative and moderate voters with meaningful opportunities to elect candidates of their choice to city councils now dominated by the left and further left. Further, conservative state legislators, even in deep-blue coastal states, have a real opportunity to shape state VRAs because the agenda behind them exposes fissures within the Democratic coalition.

The conservative case for state VRAs is not merely opportunistic, moreover. Backing these laws is also a way for conservatives to build bridges to minority communities and to channel political competition toward the persuasion of voters (as opposed to gerrymandering of districts or selective mobilization or demobilization of narrow factions within the electorate). American democracy will be more stable in the long run if the electorate picks its politicians rather than the other way round.

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Should We Be Worried About Russian Interference in the 2020 Elections? Reasons for Comfort, Reasons for Concern, and BIG Reasons for More Early Voting

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By Richard L. Hasen

The latest murky revelations from U.S. intelligence officials that Russian government operatives are probing state voter registration databases as they did in 2016 raises the question: is this all they’ve got?  Why aren’t the Russians doing a better job interfering in the 2020 elections to benefit Trump? The answer is either comforting or terrifying, but the risk of a terrifying answer suggests the prudent course is a full court press to get as many people voting before election day as possible.

U.S. government officials concluded that in 2016 the Russians engaged in three types of operations aimed at disrupting the U.S. presidential elections and helping Donald Trump win election over Hillary Clinton: the hack and leak of Democratic Party emails, a big part of which Wikileaks released just after the “Access Hollywood” tape emerged embarrassing Trump; a social media campaign aimed at passing along disinformation and stirring up social discord, especially aimed at depressing African-American turnout through messages that Hillary Clinton did not care about black lives; and the sniffing or probing of state voter registration databases across the country, which apparently was aimed not at changing votes but as creating the perception of vast interference in the election.

So far the 2020 version of Russian interference looks like a pale substitute of 2016. The Hunter Biden story based upon information supposedly on a Biden laptop has mostly fizzled, except among right-wing media and Trump’s most ardent supporters. It certainly has not broken through in an election where most Americans are focused on the more than 200,000 dead because of the coronavirus. Social media companies have gotten better at detecting coordinated inauthentic behavior, as when Russian agents pose as black activists. Even the Russian attempt to hire legitimate journalists to divide the American left seems to have gone nowhere. And now comes revelations that the Russians appear to be doing the same thing they did in 2020 in relation to voter registration databases. Then, as now, officials say there is little danger that these agents could change any vote totals.

So one possible conclusion of all of this is that there’s not much to worry about. Just like Trump cannot reconjure the “magic” of his 2016 rallies and chants to “lock up” his political opponent, the Russians perhaps lost their mojo and we can worry less about all of this foreign interference. That would be comforting.

But there is room for much greater concern. As I explained in my book Election Meltdown, one of my greatest fears about election interference is that there could be a Russian cyberattack on the power grid, as the Russians did at one point in Ukraine, aimed at knocking the power out in a Democratic city like Detroit in a swing state like Michigan. I have urged election officials to have a plan B for dealing with such a problem, but states have not done so and throwing the matter to the courts—especially now with the courts so bitterly divided along party lines on voting rights and voter suppression—would be a disaster.

So this reporting from the New York Times about the Russian interference has me concerned:

A hacking group believed to be operating at the behest of Russia’s Federal Security Service, the F.S.B. — the successor agency to the Soviet-era K.G.B. — has infiltrated multiple state and local computer networks in recent weeks, according to officials and researchers. The group, known to private researchers as Energetic Bear or Dragonfly, has hacked into American nuclear, water and power plants and airports before. While it has stopped short of shutting them down, the group is considered to be among Russia’s most formidable.

The Russian hackers were able to get inside some election administrators’ systems and had access to voting information. What alarmed officials was the targets, the timing — the attacks began two months ago — and the adversary, which is known for burrowing inside the supply chain of critical infrastructure that Russia may want to take down in the future. The officials fear that Russia could change, delete or freeze voter data, making it harder for voters to cast ballots, invalidating mail-in ballots or creating enough uncertainty to undermine election results.

Back in 2016, President Obama used the “red phone” to warn Vladimir Putin against interference in our elections. Interference such as knocking out our power, particularly during an election, should be considered an act of war. As I argued in Election Meltdown, not only can we not count on Trump to do the same as Obama; he’s actually encouraged election interference. That’s why these latest revelations are potentially terrifying; the worst could be yet to come.

So what can we do about it? For one thing, we can take solace in the fact that American intelligence officials have been able to release this information despite President Trump not wanting any blame put on Russia. It’s true that at Wednesday’s briefing, DNI Radcliffe put more emphasis on Iran’s activities rather than Russia’s and made the odd claim that Iran was seeking to hurt Trump’s reelection chances by sending threatening emails to Democrats in the name of the Proud Boys. But officials then spoke to the Times and other news organizations to get the word out. I know that federal officials have been working diligently with state and local election agencies to fight these cyberattacks.

The average person cannot do much to bolster those efforts, but there is something that can be done in most parts of the United States: vote early. The more voters that vote now, the less a disruption on Election Day will matter. Banking those votes helps to assure for less pressure to vote on election day if there are attempts at disruptions. It makes it easier to come up with potential solutions.

I’m not panicking about Russian interference; they may just be out of gas. But we’ve got to be prudent, and recognize that with all the threats to voting rights and our election system that we’ve already seen, it’s not over yet. Far, far from it.

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“Voting-rights’ groups end federal fight over drop boxes in Ohio’s presidential election”

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Cleveland.com:

A legal fight to add more drop boxes in Ohio counties before Election Day ended Thursday, as voting-rights’ advocates dismissed their federal lawsuit against Secretary of State Frank LaRose.

The NAACP of Ohio, the League of Women Voters and the A. Philip Randolph Institute of Ohio filed a brief notice that dropped all claims against LaRose in U.S. District Court in Cleveland.

The filing marked the end of a contentious issue that lasted six weeks and bounced between a federal judge in Cleveland and the 6th U.S. Circuit Court of Appeals, which ruled in LaRose’s favor earlier this month and limited the number of drop boxes across the state.

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“Trump campaign, North Carolina Republicans ask justices to stop extension of absentee-ballot deadline”

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Amy Howe for SCOTUSBlog:

Two days after three judges on the U.S. Court of Appeals for the 4th Circuit urged them to “take this case up to the Supreme Court immediately,” the Trump campaign and North Carolina Republicans did exactly that, asking the justices to block an extension of the deadline for absentee ballots in that state to nine days after the election. Timothy Moore, the Republican speaker of the state’s House of Representatives, and Philip Berger, the highest-ranking Republican in the state’s senate, told the justices that they should step in immediately to stop an “unconstitutional usurpation of power,” and “to avoid the specter of a post-election dispute over the validity of ballots received during the disputed period in North Carolina.” A second filing, by the Trump campaign and the Republican National Committee, characterized the extension of the deadline as an “extraordinary attempt by an unelected state board of elections to rewrite the unambiguous terms of a statute enacted in June” by the North Carolina legislature.

Moore and Berger asked the justices to intervene in a dispute that began this summer, when the North Carolina Alliance for Retired Americans and several voters filed a lawsuit in state court to challenge the state’s rule that mail-in ballots be received within three days of Election Day – that is, by Nov. 6. The challengers and the state’s board of elections entered into a consent agreement to extend the deadline for mail-in ballots by six days, to Nov. 12, and the state court approved that agreement earlier this month.

Moore and Berger had entered the state case as defendants to argue that the state should keep the original deadline, but they also went to federal court, where they sought to block the consent agreement from going into effect. Although a federal judge initially granted that request, the additional six-day extension – bringing the deadline to Nov. 12 – eventually went into effect.

Moore and Berger then went to the 4th Circuit, as did the Trump campaign and the RNC, which had also tried to stop the implementation of the consent agreement in federal court. By a vote of 12-3, the court of appeals denied their plea, leaving the nine-day extension in place. Judge James Wynn stressed that all absentee ballots must still be mailed by Election Day, and that the state’s election procedures had previously allowed ballots to be counted as long as they arrived within three days of Election Day. All that the consent agreement does, Wynn reiterated, is extend that deadline from three days to nine.

Judge J. Harvie Wilkinson dissented from the 4th Circuit’s order, in an opinion joined by two other judges. Wilkinson complained that federal courts and state election boards are “upend[ing] the set rules” for elections, which are established by state legislatures, and then claiming that their actions are the “new status quo” and cannot be disturbed.

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“Trump Campaign Draws Rebuke for Surveilling Philadelphia Voters”

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NYT:

The Trump campaign has been videotaping Philadelphia voters while they deposit their ballots in drop boxes, leading Pennsylvania’s attorney general to warn this week that the campaign’s actions fall outside of permitted poll watching practices and could amount to illegal voter intimidation.

The campaign made a formal complaint to city officials on Oct. 16, saying a campaign representative had surveilled voters depositing two or three ballots at drop boxes, instead of only their own. The campaign called the conduct “blatant violations of the Pennsylvania election code,” according to a letter from a lawyer representing the Trump campaign that was reviewed by The New York Times. The campaign included photos of three voters who it claimed were dropping off multiple ballots.

“This must be stopped,” a local lawyer for the Trump campaign, Linda A. Kerns, wrote in the letter, adding that the actions “undermine the integrity of the voting process.”

Both the Trump and Biden campaigns are focused on Pennsylvania, seen as one of the most important swing states in the election and where polls show Joseph R. Biden Jr. with a seven-point lead. The Trump campaign’s aggressive strategy in Philadelphia suggests its aim is to crack down on people dropping off ballots for family members or anyone else who is not strictly authorized to do so. Ms. Kerns demanded that the names of all voters who had used a drop box in front of Philadelphia’s City Hall on Oct. 14 be turned over to the campaign, and insisted that the city station a staff member around every drop box “at all times.” She also asked for footage from municipal cameras around City Hall.

But city officials rejected the assertion that the voters who had been photographed had necessarily done something improper. The city’s lawyers forwarded the campaign’s complaints to the local district attorney, but did not make a formal referral and cast doubt on the assertions. They also said they do not track which voters use which drop box.

“Third party delivery is permitted in certain circumstances,” Benjamin H. Field, a deputy city solicitor and counsel to the city Board of Elections, wrote in a letter sent to Ms. Kerns on Monday. “The Board cannot agree with your conclusion on the basis of the information you provided. Nor can the Board, in exercising its duties, assume that an individual is violating the Election Code when that person can act as an agent for a voter who required assistance.”

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“How Amy Coney Barrett could be key to new lawsuit to block Pa.’s mail-in ballot extension” (and reasons for my skepticism in this particular case)

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VoteBeat:

A new federal lawsuit seeks to block Pennsylvania officials from counting mail-in and absentee ballots received within three days after Election Day, an extension approved by the state’s highest court and recently allowed to stand by the U.S. Supreme Court.

The latest challenge came as the state’s top elections official, Kathy Boockvar, urged voters not to count on the extension, and instead mail in their ballots right away to get their votes counted.

“I want to make it clear, I honestly don’t care what the Supreme Court said or didn’t say,” Boockvar said Wednesday. “Ballots need to be mailed. If they’re going to be put in the mail, they need to be put in the mail this week. If they need to be dropped off, it needs to be done on Nov. 3.”

In the latest lawsuit, filed Thursday in federal court in Pittsburgh, a Republican congressional candidate and four voters argue that extending the deadline was unconstitutional, and the state Supreme Court overstepped its authority when it enacted the change….

This is not the first time Republicans have tried to block the three-day extension. This past Monday, the U.S. Supreme Court narrowly declined to block the extension as requested by the state GOP. The justices deadlocked 4-4 on whether to take the case, resulting in the rejection.

Four conservative justices — Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh — sought to grant the request. Chief Justice John Roberts sided with the three remaining liberal members of the court.

But the justices did not explain their reasoning, and the latest lawsuit could potentially end with a different result if appealed to the high court. With the U.S. Senate set to quickly confirm Judge Amy Coney Barrett to replace Justice Ruth Bader Ginsburg, it’s possible the conservative bloc would have enough votes to intervene and put a stop to the ballot deadline extension.

You can find the new complaint filed at this link.

I have already written that if there is any post-election litigation, Judge Barrett could join with the four other conservatives in embracing a muscular version of the “independent state legislature” doctrine. That could pay a key role if, for example, the Pennsylvania or North Carolina supreme courts (both dominated by Democrats) relied upon the state constitution to extend deadlines for the conduct of a recount.

But this particular argument about the timing of those ballots would be a harder one before the Court, because the Court having once denied the stay lulled voters into reliance that these later accepted ballots would be counted. It would be a tough argument, even for the die-hard conservatives on the Court, to retroactively disenfranchise these voters after having not done it before the election. This would be much worse than what Justices Alito, Gorsuch, and Thomas (but not Kavanaugh and Roberts) were willing to do in the South Carolina witness signature case–which would have been to have all those people who relied upon the lower court order and send in a ballot without a witness signature complete a new ballot. This would be worse because there would be no remedy for disenfranchisement.

A Court majority that would do this would be doing something much worse than what the Court in Bush v. Gore did.

I think and hope I’m right on this one.

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Here’s One Person Who Thinks Jim Comey Handed Donald Trump the 2016 Election: Donald Trump

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In today’s Washington Post story about President Trump’s “repeated” discussions with aides about whether to fire FBI Director Christopher A. Wray after Election Day, here’s what the President’s aides reportedly say about the reasons for these repeated discussions and why Wray will be fired, if he is:

People familiar with the discussions say Trump wants official action similar to the announcement made 11 days before the last presidential election by then-FBI Director James B. Comey, who informed Congress he had reopened an investigation into Clinton’s use of a private email server while she was secretary of state after potential new evidence had been discovered.

That puts the President in alignment with Nate Silver’s view at the 538 blog on the movement in the state polls over the last 11 days in the 2016 election.

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Electoral Anxieties: November 3rd and Its Aftermaths

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Later today, the Social Science Research Council’s “Anxieties of Democracy” program is hosting this event. The event features Harvard’s Steven Levitsky, co-author of How Democracies Die; the Director of the Agora Institute at John Hopkins, Hahrie Han, whose newest book is Prisms of the People: Power and Organizing in 21st Century America (forthcoming soon); and me.

The event will be live-streamed on You Tube here, and a full description of the program is here.

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“The US Eliminated Nearly 21,000 Election Day Polling Locations for 2020”

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Vice:

Almost 21,000 Election Day polling places have been eliminated heading into the 2020 U.S. election, a drastic dip in voting locations driven by a heavy shift to mail voting, coronavirus-related consolidations, cost-cutting measures, and voter suppression.

VICE News obtained data from all 50 states and Washington, D.C., on the number of physical polling locations they will have in place on November 3, and compared their numbers to how many sites they had in 2016 and 2012.

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Jack Rakove: Justice Ginsburg Got It Right (on the Meaning of “Legislature”)

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The following is a guest post from historian Jack Rakove of Stanford:

As Rick Pildes (my fellow Cubs fan and Evanston IL high school grad) noted the other day, the Supreme Court’s recent ruling in the Pennsylvania voting case leaves open the possibility that the Court might soon revisit a key holding from Arizona State Legislature v. Arizona Independent Redistricting Commission. There Justice Ginsburg, writing for a majority that included Justice Kennedy, argued that the people of Arizona had the constitutional authority to delegate the legislative authority to design congressional districts to an independent commission. Chief Justice Roberts took profound umbrage at this holding. In the Appendix to his dissent, Roberts listed the seventeen clauses of the Constitution that referred to the state legislatures, all to the effect that when the Constitution says legislature, it means legislature—that is, the representative assembly that enacts the state’s laws.

As it happens, I was the main author of a historians’ amicus brief that I believe had some influence on Justice Ginsburg’s majority opinion. (Alex Keyssar, Peter Onuf, Rosemarie Zagarri, and the late Richard Beeman joined me in the brief.) In the brief, we argued, among other points, that one explicit rationale for the Times, Places and Manner Clause of Art. I, Sect. 4 was the framers’ concern that state legislatures could design congressional districts inequitably, in violation of the principle of equal representation that we now call one person, one vote. Numerous members of the founding generation asserted that a legislature should be a “mirror,” “miniature,” “portrait” or “transcript” of the larger society—an idea that originated in the English constitutional controversies of the 1640s.

Second, and more important, we also argued—from what John Marshall might have called “general principles”—that the idea of the people vesting a legislative power in another body than the legislature was fully consistent with the constitutional theory of the founding generation. In making this claim, we drew explicitly on the authority of John Locke’s Second Treatise of Government, §149. Justice Ginsburg apparently relished the quote, for she repeated it at p. 31 of her opinion. The passage is worth quoting at length. “In a Constituted Commonwealth,” Locke observed, “there can be but one Supream [sic] Power, which is the Legislative.” Yet, he continued,

the Legislative being only a Fiduciary Power to act for certain ends, there remains still in the People a Supream Power to remove or alter the Legislative, when they find the Legislative act contrary to the trust reposed in them. For all Power given with trust for the attaining an end, being limited by that end, whenever that end is manifestly neglected, or opposed, the trust must necessarily be forfeited, and the Power into the hands of those that gave it, who may place it anew where they shall think best for their safety and security [emphasis added].

This passage is interesting in at least two ways. First, when Locke speaks of “the Legislative,” the word has both institutional and substantive connotations. It may mean the institutional legislature, which would be Chief Justice Roberts’ preferred or arguably sole meaning. But it also means the power being exercised. And second, when that latter aspect is invoked, the people retain the fundamental power to reassign the power in question somewhere else.

This conception of the people’s sovereign authority was, of course, readily available to the adopters of the Constitution. If they did not have the specific knowledge of modern constitutional initiatives at hand, they nonetheless had the capacity to conceive how such initiatives could be created and deployed. (It is worth noting that Rhode Island originally rejected the Constitution by referendum.) Given the suspicion of state legislative power that was so central to Federalist thinking in the late 1780s—and which was particularly crucial to James Madison—it takes no great leap of historical speculation to imagine that the creation of independent districting commissions would seem a plausible solution to the systemic malapportionment of congressional districts.

This brief discussion is also relevant to another topic of recent interest, our unending debates about textualist and originalism. A pure textualist might follow Chief Justice Roberts and say, legislature always means legislature; no other definition would accord with the seventeen clauses he cited in the appendix to his dissent in the Arizona case. A “public meaning” originalist might have a few qualms. If he or she understood Locke’s profound impact on eighteenth-century ideas about language, the elision between legislature and legislative could pose a problem. Whereas a historical originalist like me would know that Justice Ginsburg (as always) got it right: that once one grasps the real world of constitutional debate in the Revolutionary era, the idea that the people of Arizona could exercise their popular sovereignty by creating an independent redistricting commission was perfectly consistent with the original meaning of the Constitution. (On this point, see my recent Washington Post op-ed, “The Framers of the Constitution Did Not Worry About ‘Originalism.’”

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Today’s Must Read: Adam Serwer: “Pack the Court, Save the Vote; The Supreme Court’s conservative majority appears poised to entrench minoritarian rule without the consent of the electorate.”

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This is the best article with deep historical context connecting the debate over the size of the Supreme Court with the Supreme Court’s increasing tolerance for measures making it harder for people to register and vote.

Read it.

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My Statement to the S.F. Chronicle About Yes on 22 Using Nonprofit Status for Mailing Reflected My Ignorance; Other Ballot Measure Committees Have Used Same Status to Mail Ballot Materials

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Last night I linked to a story in the San Francisco Chronicle “Cash-rich, Uber-backed Prop. 22 campaign scrimps on postage.” The article starts: “Proposition 22, the ballot measure to exempt Uber and Lyft drivers and other gig workers from being employees, got a nonprofit postal permit for its deluge of glossy mailers, allowing it to save millions on postage.”

I was asked to give comment for this article about the use of nonprofit status for mailing, and I initially declined, because I am not following the Prop. 22 campaign finance issues closely and my expertise is on the federal, not state, side. The reporter then pushed for a general statement, and I said: ““I have never heard of a campaign using nonprofit status for campaign mailers and cannot think of any circumstances where that would be appropriate.”‘

That statement was true—I had never heard of it and it didn’t seem appropriate to me. But I’ve since learned from an election lawyer (who I believe may be representing the campaign) that there have been numerous instances of ballot measure committees using nonprofit status for mailing. There was even a 2006 case, Alliance for a Better California v. USPS, where a party challenged an opposing ballot measure committee for using this status with USPS, and the federal court dismissed the case for lack of standing.

It still seems wrong to me that ballot measure committees can do this, but I now know that there is a history of committees using the status for mailings.

It’s my own fault for giving a quote after initially declining. I regret giving a statement that reflects my ignorance on this question.

Update: I asked for the Chronicle to post an update to the online story, explaining what I have learned. The editor in charge of the story refused, and wrote the following;

First, I want to acknowledge your discomfort with this situation. You are certainly owed consideration and further discussion, as well as an explanation of our policies.

It is not uncommon for sources and subjects of coverage to have regrets or even share newly discovered facts after the publication of an article. Under our ethics policy, we cannot retrospectively edit or otherwise amend our stories after publication unless we ascertain an error which requires correction.


In this case, you spoke accurately and truthfully about your own experience and familiarity with the issue Carolyn asked about, so no correction can be made.
I would add that your handling of the situation by publicly sharing what you learned following the publication of our story is an admirable model of transparency.


Should we return to this topic, we would be grateful for more of your time and would likely note your subsequent investigations into the matter.

I disagree with this decision and let them know it.

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“Md. elections officials say video’s allegation of ballot fraud is untrue. But it’s already gone viral.”

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WaPo:

Elections officials in Maryland’s most populous jurisdiction held an emergency meeting Wednesday to discuss a viral video alleging that an election worker attempted to tamper with a mailed-in ballot.

A thorough investigation revealed no evidence of fraud or misconduct, Montgomery County officials said, but they’re concerned that the video may have spread some damaging misinformation.

“Something like this just feeds into people who believe mail-in voting is fraudulent,” said the county’s elections board chair, Jim Shalleck, a Republican appointed by Gov. Larry Hogan (R). “It’s very unfortunate.”

Elections officials in the liberal suburb of 1 million were alerted Tuesday afternoon to the video, which was posted on YouTube by a user who says they took it off 4chan, an online message board often used by provocative trolls.

The six-minute video, which had been viewed more than 80,000 times as of 6 p.m. Wednesday, starts with a brief clip taken from Yahoo Finance’s Facebook live feed of the county’s ongoing canvass of mailed ballots at Plum Gar Community Recreation Center in Germantown.

The clip shows a male election worker sorting through ballots; he briefly looks around the room before picking up a pen and leaning over the ballot. In bold text, the video suggests that the worker is committing election fraud.

“All this looks very, very suspicious,” the unnamed narrator says.

“It’s not Republicans or conservatives that do this sort of thing,” the narrator says later in the video, urging viewers to share the video “far and wide.”

An email sent to the address linked to the account that posted the video was not answered Wednesday evening. The Washington Post is not linking to the video because it was unable to confirm the poster’s identity or verify the claims.

Kevin Karpinski, counsel for Montgomery County’s elections board, told board members on Wednesday the allegation of misconduct is unfounded. Karpinski said he interviewed the canvass worker shown in the clip, spoke to other volunteers who were working at the time and reviewed every ballot that the worker had helped to sort.

“I find no evidence whatsoever, any sort of attempt of voter fraud,” he said.

In actuality, Karpinski said, what the clip captured was the canvass worker darkening an oval that had been filled in too lightly, to ensure that it would be picked up by the ballot scanners. Karpinski said that protocol has been in place for election workers since he started working for the elections board in 2003 and is designed to ensure that as many eligible ballots as possible are counted.

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