All posts by Spencer Overton

“Overcoming Racial Harms to Democracy from Artificial Intelligence”

I posted this paper to SSRN, which will be published in the Iowa Law Review.  The abstract is below: 

While the United States is becoming more racially diverse, generative artificial intelligence and related technologies threaten to undermine truly representative democracy. Left unchecked, AI will exacerbate already substantial existing challenges, such as racial polarization, cultural anxiety, antidemocratic attitudes, racial vote dilution, and voter suppression. Synthetic video and audio (“deepfakes”) receive the bulk of popular attention—but are just the tip of the iceberg. Microtargeting of racially tailored disinformation, racial bias in automated election administration, discriminatory voting restrictions, racially targeted cyberattacks, and AI-powered surveillance that chills racial justice claims are just a few examples of how AI is threatening democracy. Unfortunately, existing laws—including the Voting Rights Act—are unlikely to address the challenges. These problems, however, are not insurmountable if policymakers, activists, and technology companies act now. This Article asserts that AI should be regulated to facilitate a racially inclusive democracy, proposes novel principles that provide a framework to regulate AI, and offers specific policy interventions to illustrate the implementation of the principles. Even though race is the most significant demographic factor that shapes voting patterns in the United States, this is the first article to comprehensively identify the racial harms to democracy posed by AI and offer a way forward.

Share this:

SCOTUS, Social Media Removal of Hate is Not “Discrimination”

This is Orwellian.

Texas and Florida passed state laws that effectively hinder social media platforms in removing hate, white supremacy, election denialism, and similar content. The states are currently before the U.S. Supreme Court in the NetChoice cases attempting to defend those laws. As Daphne Keller explains:

Yet now, in their briefs, Texas and Florida are also arguing their laws prohibit discrimination, just as civil rights laws do. On that logic, ‘must-carry’ laws that may compel platforms to carry racist diatribes and hate speech are justified for the same reasons as laws that prohibit businesses from discriminating based on race or gender.

This should be obvious, but Facebook or YouTube deciding to remove a racial slur, Nazi propaganda, or white nationalist attempts to mainstream “replacement theory” is not the same as Woolworth’s deciding to remove African American college students sitting at a lunch counter and attempting to order food.

Daphne has more here.

Share this:

Thanks Rick for the opportunity to guest blog

Thanks to Rick Hasen for the opportunity to blog over the last couple of weeks, and thanks to the many readers who sent me helpful feedback, tips, and insights!  

Last June I stepped down after several years of running a think tank and returned to the faculty at GW Law to focus on law and multiracial democracy. While my reading and research over the past six months have focused on the implications of AI for multiracial democracy and the future of the Voting Rights Act, blogging has exposed me to a wide range of current election law issues and will make my work stronger. Thanks and I look forward to seeing many of you more often! 

Share this:

“American democracy has overcome big stress tests since the 2020 election. More challenges are ahead”


Over the past three years, the world’s oldest democracy has been tested in ways not seen in decades. . . At the same time, the past three years proved that American democracy was resilient. . . .

“It’s not to say the risks are gone,” said Rick Hasen, a law professor at the University of California, Los Angeles. “It’s to say we’ve successfully fought the last war.” . . . 

“There’s little doubt our democracy has gotten dinged up in a couple of moments of late, but we have decided we like it compared to the alterative,” said Justin Levitt, who served as adviser for democracy and voting rights for two years in the Biden White House and is now a law professor at Loyola Marymount University in Los Angeles.

Share this:

“Why Voting Rights Act faces new wave of dire threats in 2024”

The Guardian:

As 2023 comes to a close, the Voting Rights Act is facing a series of dire threats that could significantly weaken the landmark civil rights law.

A suite of three different pending cases could gut the ability of private plaintiffs to challenge the Voting Rights Act, make it harder to challenge discriminatory election systems, and limit the Voting Rights Act’s protections in areas where a single racial minority doesn’t constitute a majority.

Share this:

“Prosecutors Ask Appeals Court to Reject Trump’s Immunity Claims in Election Case”


Federal prosecutors asked [the U.S. Court of Appeals for the District of Columbia Circuit] on Saturday to reject former President Donald J. Trump’s claims that he is immune from criminal charges of plotting to overturn the 2020 election and said the indictment should remain in place even though it arose from actions he took while in the White House. . . . 

. . . In their 82-page filing to the appeals court, prosecutors focused on legal arguments and said that nothing in the Constitution or the country’s other founding documents supported the idea that a former president should not be subject to federal criminal law.

Share this:

“Would Keeping Trump Off the Ballot Hurt or Help Democracy?”


As the top elections official in Washington State, Steve Hobbs says he is troubled by the threat former President Donald J. Trump poses to democracy and fears the prospect of his return to power. But he also worries that recent decisions in Maine and Colorado to bar Mr. Trump from presidential primary ballots there could backfire, further eroding Americans’ fraying faith in U.S. elections.

“Removing him from the ballot would, on its face value, seem very anti-democratic,” said Mr. Hobbs, a Democrat who is in his first term as secretary of state. Then he added a critical caveat: “But so is trying to overthrow your country.”

Share this:

“How the Supreme Court May Rule on Trump’s Presidential Run”

Analysis by NYT’s Adam Liptak quoting law professors Tara Leigh Grove, Rick Hasen, Derek Muller, and Nick Stephanopolous:

. . . They will be reluctant to wrest from voters the power to assess Mr. Trump’s conduct, particularly given the certain backlash that would bring. Yet they will also be wary of giving Mr. Trump the electoral boost of an unqualified victory in the nation’s highest court.

Chief Justice John G. Roberts Jr. will doubtless seek consensus or, at least, try to avoid a partisan split of the six Republican appointees against the three Democratic ones.

He may want to explore the many paths the court could take to keep Mr. Trump on state ballots without addressing whether he had engaged in insurrection or even assuming that he had. . . .

Share this:

AALS Multiracial Democracy Morning on Sat. Jan. 6, 8-11:40 am

We’ve got two great multiracial democracy panels back-to-back in the same room (Marquis Salon 3) next Saturday, Jan. 6 at the 2024 AALS Annual Meeting.  Please join us! 

8-9:40 am  AI & Defending Multiracial Democracy

Speakers: Danielle Keats Citron (UVA), Jessica Eaglin (Cornell), Rebecca Green (William & Mary), Spencer Overton (GW), Ciara Torres-Spelliscy (Stetson)

Artificial intelligence has the potential to reduce costs, expand participation by voters of color, and facilitate new coalitions. At the same time, incumbent powers could use AI to entrench themselves through discriminatory disinformation campaigns, cyberattacks, voting restrictions, and gerrymandering. Even absent intentional discrimination, the seemingly innocuous use of AI in voter roll maintenance, signature matching, and other aspects of the process could replicate disadvantage. This panel sketches out the opportunities and challenges of AI for our increasingly multiracial democracy and potential legal solutions.

10-11:40 am  Multiracial Democracy After Allen v. Milligan and Students for Fair Admission v. Harvard College

Speakers: Tabatha Abu El-Haj (Drexel), Travis Crum (Wash. U), Jonathan Feingold (BU), Emily Rong Zhang (Berkeley), Bertrall Ross (UVA), Daniel Tokaji (Wisconsin)

This panel seeks to situate Allen v. Milligan in the broader landscape of the Roberts Court’s approach to race, democracy, and pluralism.

There are also two other important sessions on Legislation, Governance, and Democratic Fragility (Wed. 10 am) and Big Money Unleashed (Sat. 8 am).  

Share this:

“It took years for truth about election ‘audit’ to emerge. . . .”

The Arizona Republic:

Texts and emails released long after the so-called Arizona “audit” ended proved — beyond a doubt — the effort was encouraged, funded and carried out by loyalists to Donald Trump.

Those details could have remained hidden without The Arizona Republic fighting for more than two years for information about the 2020 ballot review.

What Arizonans didn’t know when then-Senate President Karen Fann announced the “audit” was that it was part of a nationwide effort to undermine elections in states Democrat Joe Biden won — and that the people involved were working behind the scenes to access voting equipment in other states as well as Arizona.

Share this:

“Sam Bankman-Fried will not face second trial on charges including making illegal campaign donations and bribing Chinese officials”

The Daily Mail:

Sam Bankman-Fried, who was convicted last month of stealing from customers of his now-bankrupt FTX cryptocurrency exchange, will not face a second trial on separate charges in the case, including campaign finance violations. 

In a letter filed on Friday night in federal court in Manhattan, prosecutors said the ‘strong public interest’ in a prompt resolution of their case against the 31-year-old former billionaire outweighed the benefits of a second trial. . . . 

According to a superseding indictment, Bankman-Fried ‘misappropriated and embezzled FTX customer deposits,’ including more than $100 million spent ‘in campaign contributions to Democrats and Republicans to seek to influence cryptocurrency regulation.’ 

The indictment also alleged that Bankman-Fried concealed the source of campaign donations by making them in the names of various FTX executives, including former engineering director Nishad Singh.

Share this:

“States were cooperating on election integrity. Then GOP officials quit.”

WaPo Editorial Board:

Since 2022, nine states where Republican officials administer elections have quit a nonprofit, nonpartisan consortium that helps keep voter rolls up to date through interstate data exchange. They did so amid pressure from former president Donald Trump, who claimed in March that the consortium “pumps the rolls” for Democrats. Consequently, voter rolls in those states are less accurate, and it’s becoming harder to detect the small number of people who improperly vote in multiple states. Indeed, as 2024 begins, these same election officials find themselves spending taxpayer dollars to re-create the very tools that the system they abandoned had provided.

Share this:

“2024 elections are ripe targets for foes of democracy”


This past summer and fall, thousands of Facebook accounts started posting about U.S. politics and foreign affairs. But their posts were weird — some included what looked like Twitter handles and the term “RT,” an abbreviation for “retweet.”When Facebook’s parent company, Meta, started digging into them, it found that the accounts were copying posts from Twitter, now known as X, and pasting them onto Facebook. The accounts were pretty obviously fake: While they claimed to belong to Americans, Meta found they were being operated from China, with stolen names and profile pictures.

Share this: